author: WISE, Justice.

text:
    EX PARTE DECATUR CITY BOARD OF EDUCATION
    (In re: Carrie Cabri Witt v. Decatur City Board of Education)
    1170017
    Supreme Court of Alabama.
    June 22, 2018
    Carl Johnson and Melissa B. McKie of Bishop, Colvin, Johnson & Kent, LLC, Birmingham; and James Irby, Florence, for petitioner.
    Robert B. Tuten and Nickolas R. Heatherly, Huntsville, for respondent.
   WISE, Justice.

The Decatur City Board of Education ("the Board"), the defendant below, filed a petition for a writ of mandamus requesting that this Court order the Morgan Circuit Court to dissolve the preliminary injunction it entered on February 28, 2017, and to dismiss the petition upon which it was based. We grant the petition and issue the writ.

Facts and Procedural History

On or about March 22, 2016, Carrie Cabri Witt, a school employee, was arrested and charged with engaging in sex acts with students who were under the age of 19 years. At that time, she was also placed on paid administrative leave. On September 2, 2016, a Morgan County grand jury returned a two-count indictment that charged her with engaging in a sex act or deviate sexual intercourse with 2 students who were under the age of 19 years, in violation of § 13A-6-81, Ala. Code 1975.

On November 4, 2016, the superintendent of education for Morgan County recommended to the Board that Witt's teaching contract be terminated based on the allegations that she had engaged in inappropriate sexual activity with one or more students in the Decatur City School System. According to the Board, that conduct violated Board policy and corresponding professional standards. On January 31, 2017, the Board notified Witt that it had scheduled a termination hearing for March 2, 2017.

On February 22, 2017, Witt filed a petition in the Morgan Circuit Court, seeking a preliminary injunction staying the termination proceeding until after the disposition of the underlying criminal case. She argued that, because the basis for the termination proceeding was the underlying criminal charges, she would be forced to choose between the risk of self-incrimination if she testified in the termination proceeding or of losing her teaching contract if she did not testify in the termination proceeding.

On February 24, 2017, the Board filed a motion to dismiss or to deny the petition for a preliminary injunction. It quoted § 16-24C-6(j), Ala. Code 1975, which provides:

"Employees shall not be permitted to delay, defer, or defeat the initiation or pursuit of any termination or other employment action initiated under authority of this chapter based upon the pendency or threatened initiation of criminal proceedings arising out of the facts, circumstances, or subject matter of the employment action. The appearance or testimony of an employee in a proceeding authorized under this chapter shall not cause the employee to waive, forfeit, or relinquish any right against self-incrimination, and no such testimony shall be admitted in any court of this state in a criminal proceeding in which the right applies upon the timely objection of the employee thereto."

(Emphasis added.) The Board then argued that Witt would be "free to testify in the administrative hearing if she desires to do so without fear of waiving any objection to the use of such testimony in the criminal trial or forfeiting her right not to take the witness stand." Therefore, it concluded that she was not being forced to choose between the risk of self-incrimination if she testified or of losing her teaching contract if she did not testify.

On February 28, 2017, the trial court granted the petition for a preliminary injunction. It reasoned, in part, that § 16-24C-6(j)"does not adequately protect [Witt's] constitutional rights" against self-incrimination because § 13A-6-83, Ala. Code 1975, "has not been repealed [or] amended to account for the enactment of § 16-24C-6 [,] placing the statutes clearly in conflict one with the other." The court also noted that Witt had challenged the constitutionality of § 13A-6-81 ; that a hearing on the motion was set for April 3, 2017; and that a jury trial was set for August 21, 2017. It further found that the Board would "suffer no further harm by being enjoined from terminating employment until such time as the criminal matter is resolved later this year."

On March 22, 2017, the Board filed a motion to dissolve the preliminary injunction. It argued that, "because they are in conflict, the SFA's [Students First Act, Act No. 2011-270, Ala. Acts 2011] repealer clause operates to nullify § 13A-6-83." It also argued that, "even without the SFA's repealer clause, § 13A-6-83 would be deemed superseded and controlled by § 16-24C-6(j)." The Board further argued:

"[ Section] 16-24C-6(j) is the governing expression of legislative intent on the specific question of the interplay between criminal charges and employment rights in the public school context because it is found in the comprehensive statute that was adopted precisely for the purpose of establishing and delineating such rights. By contrast, § 13A-6-83 was included in the Act that criminalized sexual misconduct between school employees and students not as an amendment of or addendum to the tenure law or even as a fully formed statement of employment rights and procedures, but as a lifeline to employers who would otherwise have had no means of confidently suspending alleged criminal offenders under the tenure law as it was then written."

On April 12, 2017, the Board requested a hearing on its motion to dissolve the preliminary injunction. The trial court did not rule on that motion.

On August 10, 2017, the trial court granted Witt's motion in the pending criminal case to hold § 13A-6-81(a) unconstitutional as applied to her and dismissed the criminal case without prejudice. The State of Alabama appealed that ruling to the Court of Criminal Appeals, and that appeal remains pending.

On August 31, 2017, the Board filed another motion to dissolve the February 28, 2017, injunction that was entered in the termination proceeding. On September 11, 2017, Witt filed a response in opposition to the Board's motion to dissolve. The trial court did not rule on the motion. This petition followed.

Standard of Review

" ' "A writ of mandamus is an extraordinary remedy that is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank, 893 So.2d 1116, 1119 (Ala. 2004). A writ of mandamus is 'appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001)."
" ' Ex parte Antonucci, 917 So.2d 825, 830 (Ala. 2005). "Mandamus will be granted only where an abuse of discretion is shown." Ex parte McMahan, 507 So.2d 492, 493 (Ala. 1987).'
" Ex parte Rawls, 953 So.2d 374, 377 (Ala. 2006)."

Ex parte Edmondson, 238 So.3d 85, 87 (Ala. Civ. App. 2017).

Discussion

The Board argues that it is entitled to mandamus relief because the trial court has refused to rule on its August 31, 2017, motion to dissolve the February 28, 2017, injunction. We agree.

Witt argues that the same issues and allegations serve as the basis for both the termination proceeding and the underlying criminal charges. She also contends that the State's actions indicate that it intends to pursue its prosecution of her based on the alleged conduct. Therefore, Witt asserts, as she did before the trial court, that she would be forced to choose between the risk of self-incrimination if she testified in the termination proceeding or of losing her teaching contract if she did not testify in the termination proceeding.

In Ex parte Rawls, 953 So.2d 374, 378 (Ala. 2006), this Court set forth the following framework for deciding whether a stay should be granted in a civil proceeding to protect a party's right against self-incrimination in a related or potential criminal proceeding:

"In the present case, three issues must be addressed to determine if a stay in the civil divorce proceedings based on Fifth Amendment concerns in a pending criminal action is warranted: (1) whether the civil proceeding and the criminal proceeding are parallel, see Ex parte Weems, 711 So.2d 1011, 1013 (Ala. 1998) ; (2) whether the moving party's Fifth Amendment protection against self-incrimination will be threatened if the civil proceeding is not stayed, see Ex parte Windom, 763 So.2d 946, 950 (Ala. 2000) ; and (3) whether the requirements of the balancing test set out in Ex parte Baugh, 530 So.2d [238,] 244 [ (Ala. 1988) ], and Ex parte Ebbers, 871 So.2d 776, 789 (Ala. 2003), are met."

The issue whether the trial court initially should have stayed the termination proceeding pending the resolution of the criminal charges against Witt is not before us in this petition. Instead, the sole issue before us is whether the trial court should have granted the Board's August 31, 2017, motion to dissolve the February 28, 2017, injunction. Nevertheless, Ex parte Rawls still sets forth the framework for our review of this issue.

First, we must determine whether the termination proceeding and the criminal proceeding are "parallel." Both proceedings are premised upon identical allegations. Specifically, both the documents in the termination proceeding and the indictment allege that Witt engaged in sex acts with students who were under the age of 19 years. Although Witt may raise a consent defense in the criminal proceeding, it otherwise appears that evidence to be presented during both proceedings is likely to be substantially similar, if not identical. Therefore, we conclude that the termination proceeding and the criminal proceeding are parallel. See R.M. v. Elmore Cty. Dep't of Human Res., 75 So.3d 1195, 1202 (Ala. Civ. App. 2011) ("The evidence presented in both the civil and the criminal actions ... was expected to be substantially similar, if not identical.... [W]e conclude that the termination proceedings and the criminal proceedings were parallel."); Rawls, 953 So.2d at 380 ("Because that criminal proceeding and the divorce proceeding have some overlapping acts, they must be considered parallel proceedings.").

Second, we must determine whether Witt's Fifth Amendment right against self-incrimination will be threatened if the stay of the termination proceeding is lifted. Initially, we note that, because the trial court declared the statute under which Witt was indicted unconstitutional, the criminal charges against Witt have been dismissed. Therefore, even though the underlying case is on appeal in the Court of Criminal Appeals and the trial court's decision could be reversed and the criminal case against Witt reinstated or Witt could later be indicted under another statute, either possibility is too remote at this time to warrant continuing to stay the termination proceeding. Also, § 16-24C-6(j) specifically provides that, if Witt testifies during the termination proceeding, "no such testimony shall be admitted in any court of this state in a criminal proceeding in which the right applies upon the timely objection of the employee thereto." (Emphasis added.) Under these circumstances, we conclude that the Board has established that Witt's privilege against self-incrimination will not be threatened if the stay of the termination proceeding is lifted.

Because we conclude that Witt's privilege against self-incrimination will not be threatened if the stay of the termination proceeding is lifted, an in-depth discussion of the third factor set forth in Ex parte Rawls-i.e., whether the requirements of the balancing test set out in Ex parte Baugh, 530 So.2d 238, 244 (Ala. 1988), and Ex parte Ebbers, 871 So.2d 776, 789 (Ala. 2003), are met-is not necessary. See Ex parte Butts, 183 So.3d 931 (Ala. 2015) (stating that the conclusion that a party's right against self-incrimination was not threatened by a civil proceeding obviated the need to discuss the third issue in Ex parte Rawls ). Nevertheless, out of an abundance of caution, we note that, in Ex parte Ebbers, this Court stated:

"This Court has repeatedly stated that in determining whether a stay or a protective order should issue in a civil case when parallel criminal prosecutions or criminal investigations are underway a trial court should weigh the movant's interest in postponing the civil action against the prejudice that might result to the other party because of delay ...."

871 So.2d at 785. Further, this Court stated that it will consider the following factors in conducting the weighing analysis set forth above:

"1. The interest of the plaintiff in proceeding expeditiously with the civil litigation, or any particular aspect of it, and the potential prejudice to the plaintiff of a delay in the progress of that litigation....
"2. The private interest of the defendant and the burden that any particular aspect of the proceedings may impose on the defendant....
"3. The extent to which the defendant's Fifth Amendment rights are implicated/the extent to which the issues in the criminal case overlap those in the civil case....
"4. The convenience of the court in the management of its cases, and the efficient use of judicial resources....
"5. The interest of persons not parties to the civil litigation....
"6. The interest of the public in the pending civil and criminal litigation....
"7. The status of the criminal case, including whether the party moving for the stay has been indicted....
"8. The timing of the motion to stay...."

871 So.2d at 789-90. Finally, this Court noted:

"Obviously, a trial court 'must make a highly fact-bound inquiry into the "particular circumstances and competing interest involved in the case" ' when parallel civil litigation and actual, or reasonably expected, criminal charges coexist. Sterling [Nat'l Bank v. A-1 Hotels Int'l, Inc.], 175 F.Supp.2d [573,] 576 [ (S.D.N.Y. 2001) ]. Some of the factors recognized in the various cases as part of the weighing and balancing can have a tendency partially to duplicate each other, and not all of the factors may have application in any given case. Nonetheless, consideration of each of these factors is helpful in the weighing and balancing process."

871 So.2d at 790.

Under the facts of this case, we conclude that the Board has established that the balancing test weighs in favor of lifting the stay of the termination proceeding. The Board argues that, at the time of the filing of this petition, Witt had received salary and benefits approaching $100,000 since her suspension in March 2016. In addition, it points out that a replacement teacher is also being paid and asserts that "Decatur taxpayers and students will continue to receive the instructional services of one replacement teacher 'for the price of two.' " The Board further notes that it expects that the termination proceeding will be based primarily on the testimony of third parties, but notes that one witness has moved to Chicago, a second witness has moved to Tuscaloosa, and a third witness has moved and cannot be located. It also points out that further delays may cause additional witness attrition.

The Board also argues that Witt has not been required to testify in any investigation or other matter related to the termination proceeding. It states that it expects to rely primarily on testimony from third parties, rather than Witt, during the termination proceeding. The Board further argues that the termination proceeding does not turn in whole or in part on whether Witt's conduct violated a criminal statute. Specifically, it contends that her criminal defense focused on the students' consent. However, the Board asserts that the alleged violations of Board policy and professional standards do not require that it establish that the sexual activity was not consensual to proceed with the termination proceeding.

The Board further argues that "the presumed peril to any Fifth Amendment right now is more attenuated than ever" because the criminal proceedings have been dismissed, appealed, and put on hold indefinitely. It contends that, although the possibility that the trial court's order will be reversed on appeal cannot be ruled out, "that prospect is inherently speculative and thus not properly considered in the balancing analysis."

Finally, the Board argues:

"[A]ny Fifth Amendment concerns have been eliminated by the blanket protection afforded by § 16-24C-6(j), which provides Witt with greater protection and freedom to testify than does the Fifth Amendment itself, and Witt can speak to any relevant matter without fear that her testimony would be used against her in a subsequent criminal prosecution."

The Board has presented compelling evidence that circumstances have changed since the trial court entered the preliminary injunction on February 28, 2017, staying the termination proceeding so that the preliminary injunction or stay is no longer appropriate. In addition to presenting evidence that the criminal charges have been dismissed, the Board also presented evidence indicating that Witt's defense to those charges was apparently consent and that the issue of consent does not have any bearing on the termination proceeding. The Board also affirmatively represented that it does not intend to rely on Witt's testimony during the termination proceeding. Moreover, the Board correctly argued that, if Witt chooses to invoke her Fifth Amendment right during the termination proceeding, her invocation of that right cannot be used against her in any subsequent criminal proceedings. Cf. Ex parte Ebbers, 871 So.2d at 795 ("[I]f a stay is not granted Ebbers, and if he elects to assert his Fifth Amendment right as to any deposition questioning or document-production request, the jury in the RSA litigation could be instructed at trial that an adverse inference could be drawn against him as a result."). Or, if Witt chooses to testify during the termination proceeding, § 16-24C-6(j) provides that "no such testimony shall be admitted in any court of this state in a criminal proceeding in which the right applies upon the timely objection of the employee thereto." (Emphasis added.) Finally, the Board presented evidence indicating that, even though the trial court had indicated in the order staying the termination proceeding that the Board would not suffer further harm "by being enjoined from terminating employment until such time as the criminal matter is resolved later this year," the trial court had not revisited that order after the criminal charges were dismissed. The Board argues that it was left in a "state of 'legal limbo,' " with no end to the proceedings in sight and being forced to continue to pay both Witt and a replacement teacher. Cf. Ex parte Edmondson, supra. In her response, Witt continues to argue that her privilege against self-incrimination warrants the stay, but she does not acknowledge or address the effect of the changed circumstances in this case.

Conclusion

For the above-stated reasons, we conclude that the Board has established that it has a clear legal right to relief from the trial court's February 28, 2017, preliminary injunction. Specifically, the Board has established that circumstances have changed since the trial court entered the preliminary injunction staying the termination proceeding on February 28, 2017, so that the preliminary injunction or stay is no longer appropriate. Accordingly, we grant the petition for a writ of mandamus and direct the trial court to dissolve its February 28, 2017, injunction and to dismiss the petition upon which it was based.

PETITION GRANTED; WRIT ISSUED.

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

      The Board and "Decatur City Schools" were named as defendants below. However, the Board has stated that "Decatur City Schools" is not a legal entity. Therefore, we refer to the defendant below and the petitioner here simply as "the Board."

      Section 13A-6-83 provides:
      "A school employee charged with the crime of engaging in a sex act or deviant sexual intercourse with a student or the crime of having sexual contact with a student may be placed on paid administrative leave while the charge is adjudicated. Upon the adjudication of the charge, further disciplinary action may be taken in accordance with the Teacher Tenure Act, Chapter 24 of Title 16, the Teacher Accountability Act, Chapter 24B of Title 16, or the Fair Dismissal Act, Article 4 of Chapter 26 of Title 36, whichever is applicable."
      (Emphasis added.)

      The repealer clause in the Students First Act, Act No. 2011-270, § 14, provides, in relevant part:
      "All laws or parts of laws which conflict with this act are repealed. Specifically, portions of the Teacher Tenure Law, consisting of Article 1, commencing with Section 16-24-1, Chapter 24, Title 16; the Fair Dismissal Act, Article 4, commencing with Section 36-26-100, Chapter 26, Title 36; and Section 16-24B-7, Code of Alabama 1975, relating to teacher transfers, are repealed."

      Because this mandamus petition is directed solely to the question whether the stay should be lifted, our holding in this matter should not be understood to be a comment as to whether the initial issuance of the stay was proper.

      This Court noted in Ex parte Rawls that " 'the trial court is not precluded from subsequently entertaining a motion to dissolve the stay, if circumstances have changed in the interim in such a way as to render the stay no longer appropriate.' [ Ex parte] Ebbers, 871 So.2d [776,] 788 [ (Ala. 2003) ]." 953 So.2d at 386.


source: Caselaw Access Project

license: Public Domain

text:
    EX PARTE BROOKWOOD HEALTH SERVICES, INC.
    (In re: Rita Kay v. Brookwood Baptist Health LLC-Brookwood Baptist Health Services)
    1170054
    Supreme Court of Alabama.
    June 22, 2018
    Thomas A. Kendrick and Holly S. Bell of Norman, Wood, Kendrick & Turner, Birmingham, for petitioner.
    Richard A. Rice of The Rice Firm, LLC, Birmingham, for respondent.
   WISE, Justice.

Brookwood Health Services, Inc., the defendant below, filed a petition for a writ of mandamus directing the Jefferson Circuit Court to dismiss Rita Kay's action against it. We grant the petition and issue the writ.

Facts and Procedural History

On October 8, 2016, Kay filed a complaint against "Brookwood Baptist Health LLC" and fictitiously named defendants pursuant to the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975, based on injuries she allegedly suffered at the hands of another patient while she was being treated in the Psychiatric and Behavioral Health Inpatient Services Unit at Brookwood Baptist Medical Center from October 8, 2014, until October 12, 2014. She asserted claims of medical negligence, false imprisonment, negligence and wantonness, breach of contract, and negligent and/or wanton hiring, training, and/or supervision. The complaint included an attachment that requested that the defendant be served by certified mail at the following address: "Brookwood Baptist Health 1, LLC, c/o CT Corporation System, 2 North Jackson Street Ste 605, Montgomery, AL 36104." The summons cover sheet requested notice by certified mail to "Brookwood Baptist Health LLC, c/o CT Corporation System[,] 2 North Jackson Street, Montgomery, AL 36104."

On November 9, 2016, CT Corporation System sent a letter to Kay's counsel, stating:

"Our records indicate that we represent more than one entity beginning with the name: (BROOKWOOD BAPTIST HEALTH, LLC). In order that we may properly process the enclosed document(s), we must be provided with the full name of the entity for which it is intended.
"Should you make this determination, please amended [sic], return the document(s) to us and we will be glad to forward.
"CT was unable to forward."

On December 16, 2016, the trial court entered an order stating:

"[Kay] is allowed forty-two days to perfect service on defendant Brookwood Baptist Health LLC, or this defendant may be dismissed."

Two certified-mail receipts were filed with the circuit clerk on February 27, 2017. The first was directed to "Keith Parrott/Brookwood Baptist, 1130 22nd Street South, Ridge Park Place, Suite 1000, Birmingham, AL 35203." It was signed by T. Coleman and dated as delivered on February 13, 2017. The second certified-mail receipt was directed to "CT Corporation System, Brookwood Baptist Health, 2 North Jackson Street Ste 605, Montgomery, AL 36104." It was signed/stamped by Laura Payne and dated as delivered on February 13, 2017. On February 27, 2017, the trial court entered the following order:

"[Kay] is allowed twenty-one days to perfect service on defendant Brookwood Baptist Health LLC. Failure to perfect service will result in dismissal of this defendant with no further notice from the Court."

On March 16, 2017, "Brookwood Baptist Health, LLC," filed a motion to dismiss pursuant to Rules 12(b)(2), (4), and (5), Ala. R. Civ. P., for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process. It argued that Brookwood Baptist Health, LLC, was not a current legal entity and that it was not a legal entity in existence at the time of the events upon which the complaint was based. Brookwood Baptist Health, LLC, also argued that Brookwood Baptist Health 1, LLC, was a foreign, limited-liability company with its principal place of business in Dallas, Texas; that it was formed in Delaware on or about June 19, 2015; that it had been doing business in Alabama since September 30, 2015; and that it was not a legal entity that was in existence at the time of the events that formed the basis for the action. Finally, Brookwood Baptist Health, LLC, argued that neither Brookwood Baptist Health, LLC, nor Brookwood Baptist Health 1, LLC, had properly been served with process and that, even if service signed for by Coleman had been proper, it was made outside the 120 days for perfecting service.

On May 2, 2017, the trial court entered an order in which it continued the motion to dismiss generally and allowed Kay 30 days to amend the complaint and perfect service on the defendants.

On June 3, 2017, Kay filed an amended complaint in which she named "Brookwood Baptist Health Services," rather than "Brookwood Baptist Health LLC," as the defendant. The complaint included an attachment that requested that the defendant be served by certified mail at the following address: "Brookwood Health Services, Inc., c/o CT Corporation System, 2 North Jackson Street Ste 605, Montgomery, AL 36104." The summons cover sheet requested notice by certified mail to "Brookwood Health Services, Inc., c/o CT Corporation System[,] 2 North Jackson Street, Montgomery, AL 36104."

On August 10, 2017, Brookwood Health Services, Inc., filed a motion to dismiss the amended complaint. It noted initially that it had been incorrectly designated as "Brookwood Baptist Health Services" in the amended complaint. Brookwood Health Services, Inc., then moved to dismiss the complaint pursuant to Rules 12(b)(5) and (6), Ala. R. Civ. P., for insufficiency of service of process and as being barred by the two-year statute of limitations set forth in § 6-5-482, Ala. Code 1975.

On September 4, 2017, Kay filed a response to the motion to dismiss filed by Brookwood Health Services, Inc. She argued that service of process on Brookwood Health Services, Inc., had been proper; that the action was not barred by the statute of limitations; and that Brookwood Health Services, Inc., had been put on notice of the filing of the complaint. It does not appear that she submitted any evidence in support of her motion.

On September 7, 2017, the trial court denied the motion to dismiss. This petition followed.

Standard of Review

" ' "A writ of mandamus is an extraordinary remedy, and it 'will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' " ' Ex parte Monsanto Co., 862 So.2d 595, 604 (Ala. 2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala. 2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993) ). We note that generally '[t]he fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal.' Ex parte Southland Bank, 514 So.2d 954, 955 (Ala. 1987). A petition for a writ of mandamus, however, is the proper means to seek review of an order denying a motion to dismiss or for a summary judgment filed by a defendant added after the statute of limitations has run, under Rule 15(c)(3), Ala. R. Civ. P., which governs the relation back of amended complaints when the defendant has received notice of the action so that the defendant will not be prejudiced in maintaining a defense on the merits and the defendant knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the defendant. See, e.g., Ex parte Empire Gas Corp., 559 So.2d 1072 (Ala. 1990) (denying petition for writ of mandamus where parent corporation filed a motion to dismiss judgment creditors' amended complaint in which the judgment creditors sought to add parent corporation as a party under Rule 15(c), Ala. R. Civ. P., and to hold the parent corporation liable for the debts of its subsidiary). See also Ex parte Jackson, 780 So.2d 681 (Ala. 2000), Ex parte Snow, 764 So.2d 531 (Ala. 1999), and Ex parte Stover, 663 So.2d 948 (Ala. 1995)."

Ex parte Novus Utils., Inc., 85 So.3d 988, 995-96 (Ala. 2011).

Discussion

Brookwood Health Services, Inc., argues that Kay's action against it is barred by the two-year statute of limitations set forth in § 6-5-482(a), Ala. Code 1975. Specifically, it contends that the statute of limitations expired on October 10, 2016; that it was not named as a defendant until the amended complaint was filed on June 3, 2017; and that it did not receive the amended complaint until July 12, 2017. After acknowledging that Kay may have named it in place of Brookwood Baptist Health LLC in an attempt to invoke the provisions of Rule 15(c)(3), Ala. R. Civ. P., Brookwood Health Services, Inc., asserts that the action against it did not relate back to the original filing because the requirements of Rule 15(c)(3) were not satisfied.

Kay asserts that she "filed the complaint against [Brookwood Health Services, Inc.], including its many aliases, on October 8, 2016." She then argues:

"A court may impute notice of the institution of an action against the original defendant to a subsequently named defendant if there is an 'identity of interests.' See Bank of Red Bay v. King, 482 So.2d 274, 280 (Ala. 1985). There is clearly an identity of interest amongst Brookwood and its many aliases."

Rule 15(c), Ala. R. Civ. P., provides, in relevant part:

"(c) Relation back of amendments. An amendment of a pleading relates back to the date of the original pleading when
"....
"(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, except as may be otherwise provided in Rule 13(c) for counterclaims maturing or acquired after pleading, or
"(3) the amendment, other than one naming a party under the party's true name after having been initially sued under a fictitious name, changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the applicable period of limitations or one hundred twenty (120) days of the commencement of the action, whichever comes later, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party ...."

(Emphasis added.)

" 'Our Supreme Court has held that the granting of amendments to pleadings other than those of right under Rule 15(a), Ala. R. Civ. P.[,] are within the discretion of the [trial] court. However, if the statute of limitations has run, the amendment may relate back only if the requirements of Rule 15(c), [Ala.] R. Civ. P.[,] are met. Ex parte Tidmore, 418 So.2d 866 (Ala. 1982).'
" Weaver v. Redwing Carriers, Inc., 475 So.2d 869, 871 (Ala. Civ. App. 1985)."

Ex parte Novus Utils., 85 So.3d at 996. Finally,

"[ Rule 15(c)(3), Ala. R. Civ. P.,] limits application of the relation-back principles to situations where the party added by the amendment received notice of the commencement of the action either before the expiration of the applicable limitations period or within 120 days of the filing of the complaint initiating the action."

Ex parte Profit Boost Mktg., Inc., 254 So.3d 862, 870 (Ala. 2017).

Assuming, without deciding, that service on Brookwood Baptist Health LLC, the original defendant, was proper, the materials before this Court establish that Brookwood Baptist Health LLC did not receive the complaint until February 13, 2017-128 days after the lawsuit was commenced. Brookwood Health Services, Inc., states that it received the complaint even later, on July 12, 2017, and the materials before us support that contention. Although Kay asserts that she attempted to serve Brookwood Baptist Health LLC multiple times, she has not presented any evidence to establish that Brookwood Baptist Health LLC actually received notice of the complaint within 120 days after she filed it. Likewise, she also has not presented any evidence to establish that Brookwood Health Services, Inc., received notice of the complaint within 120 days after she filed it. Therefore, even assuming, without deciding, that there was an identity of interests between Brookwood Baptist Health LLC and Brookwood Health Services, Inc., there was no evidence to show that either entity received notice of the complaint within 120 days after Kay filed it. See Mendez v. Jarden Corp., 503 F. App'x 930, 937 (11th Cir. 2013) (not selected for publication in the Federal Reporter) ("Mendez cannot show that any defendant received notice of her complaint within 120 days of its filing, let alone that Coleman received notice of the filing of her complaint within that time. Thus, Mendez has not shown that the district court erred in granting summary judgment in favor of Coleman because her claim was barred by the statute of limitations."). Accordingly, the amended complaint did not relate back to the filing of the original complaint, and that amended complaint was barred by the two-year statute of limitations set forth in § 6-5-482(a).

Conclusion

Brookwood Health Services, Inc., has established that it was added as a defendant after the expiration of the applicable limitations period and that, for the reasons set forth above, relation-back principles do not apply. Therefore, it has demonstrated that it has a clear legal right to the relief sought. Accordingly, we grant the petition for a writ of mandamus and direct the trial court to vacate its September 7, 2017, order denying the motion to dismiss filed by Brookwood Health Services, Inc., and to dismiss Kay's complaint.

PETITION GRANTED; WRIT ISSUED.

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

      Section 6-5-482(a), Ala. Code 1975, provides, in pertinent part:
      "All actions against physicians ... for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission, or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date."

      Again, we assume, without deciding, that service was proper.


author: MENDHEIM, Justice.

text:
    EX PARTE CONSOLIDATED PIPE & SUPPLY CO., INC.
    (In re: Consolidated Pipe & Supply Co., Inc. v. The Ohio Casualty Insurance Company et al.)
    1170050
    Supreme Court of Alabama.
    June 22, 2018
    Rachel J. Moore of Christian & Small LLP, Birmingham, for petitioner.
    Gary W. Lackey of The Lackey Law Firm, Scottsboro, for respondents.
   MENDHEIM, Justice.

Consolidated Pipe & Supply Co., Inc. ("Consolidated Pipe"), petitions this Court for a writ of mandamus directing the Morgan Circuit Court to vacate its September 19, 2017, order transferring this case to the Jackson Circuit Court. We grant the petition.

I. Facts

On August 3, 2017, Consolidated Pipe filed the underlying action in the Morgan Circuit Court against The Ohio Casualty Insurance Company ("Ohio Casualty"), Bolt Construction & Excavating, LLC ("Bolt Construction"), and Michael Bolt (hereinafter referred to collectively as "the defendants"). According to Consolidated Pipe's complaint, the West Morgan East Lawrence Water and Sewer Authority ("the Water Authority") contracted with Bolt Construction to perform a public work known as "the Vaughn Bridge Road Water Line Relocation Project No. 14018.00" ("the project"). Bolt Construction also obtained payment bond no. 16069745 ("the bond") from Ohio Casualty as surety to cover the project. As the sole owner of Bolt Construction, Bolt executed the bond contract on behalf of Bolt Construction on March 22, 2016. It is undisputed that the project was located in Morgan County.

In the course of performing its contract with the Water Authority, Bolt Construction entered into a contract with Consolidated Pipe pursuant to which Consolidated Pipe was to supply materials for use in the project. Bolt executed a guaranty in conjunction with the contract with Consolidated Pipe in which he agreed to unconditionally and personally guarantee full and prompt payment of all sums owed to Consolidated Pipe by Bolt Construction in the event Bolt Construction failed to pay the contracted-for amount. In its complaint, Consolidated Pipe alleges that Bolt Construction failed to pay Consolidated Pipe for the materials it furnished to Bolt Construction for the project, a cost it asserts amounts to $59,784.38.

Consolidated Pipe's complaint asserts four counts against Bolt Construction, Bolt, and Ohio Casualty. First, it asserts that Bolt Construction and Ohio Casualty violated Alabama's "little Miller Act," Ala. Code 1975, § 39-1-1 et seq. This count expressly sought recovery under the bond issued by Ohio Casualty. Second, Consolidated Pipe alleges that Bolt Construction breached the supply contract between them. Third, the complaint asserts a claim for money due on open account against Bolt Construction. Finally, the complaint asserts a claim against Bolt alleging breach of the guaranty because Bolt failed to reimburse Consolidated Pipe after Bolt Construction failed to pay the amount owed on the contract for the furnished materials.

On September 7, 2017, the defendants filed their "Response to Plaintiff's Request for Admission of Facts and Genuineness of Documents." On the same date, the defendants filed a joint motion for a change of venue to Jackson County. In that motion, the defendants contended that Morgan County was an improper venue for the action because Bolt does not reside in Morgan County, Bolt Construction is headquartered in Jackson County, and Ohio Casualty is a foreign corporation with its principal place of business in New Hampshire and it does business by agent in Birmingham, Alabama. The defendants contended that under Rule 82, Ala. R. Civ. P., and § 6-3-7(a), Ala. Code 1975, Morgan County was not a proper venue as to any of the defendants. In the alternative, they asserted that under the doctrine of forum non conveniens, pursuant to § 6-3-21.1(a), Ala. Code 1975, Jackson County was a more convenient forum because Bolt lives there.

On September 19, 2017, the Morgan Circuit Court granted the defendants' motion to transfer the case to Jackson County-without conducting a hearing and before Consolidated Pipe had filed a response to the motion. The order stated: "Defendants' Joint Motion to Transfer Venue is GRANTED. The Clerk is directed to transfer the above case to the Circuit Court of Jackson County, Alabama for further proceedings."

The following day Consolidated Pipe filed a motion seeking vacatur of the transfer order. Consolidated Pipe filed evidentiary submissions with its motion, including an affidavit from Carleen White, the office manager for the Water Authority. White attached to her affidavit an executed copy of the bond contract. The motion also contained several arguments in favor of finding that Morgan County was a proper venue and an argument that Morgan County was the more convenient forum under the doctrine of forum non conveniens.

On October 3, 2017, the Morgan Circuit Court held a hearing on Consolidated Pipe's motion. On October 12, 2017, the circuit court denied the motion. On October 17, 2017, Consolidated Pipe filed this petition for a writ of mandamus.

II. Standard of Review

" 'A petition for the writ of mandamus is the appropriate means by which to challenge a trial court's order regarding a change of venue. The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows " ' "(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 Inverness Constr. Co., 775 So.2d 153, 156 (Ala. 2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala. 1996) ); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala. 1999).'
" Ex parte Children's Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala. 2005).
"Applying the general rules to a petition for a writ of mandamus challenging a ruling related to venue, this Court has held: 'The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.' Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala. 1987). 'Our review is limited to only those facts that were before the trial court.' Ex parte Kane, 989 So.2d 509, 511 (Ala. 2008)."

Ex parte Lugo de Vega, 65 So.3d 886, 891 (Ala. 2010).

III. Analysis

Some background is useful for understanding Ohio Casualty's involvement in the project and in this action. The defendants admitted in their responses to Consolidated Pipe's request for admissions that the project was a public work. White stated in her affidavit:

"3. West Morgan East Lawrence Water and Sewer Authority entered into a contract (hereinafter the 'Construction Contract') for the Public Work with Bolt Construction & Excavating, LLC ('BCE').
"4. To fulfill the requirements of the Construction Contract and applicable law, BCE was required to furnish a payment bond to the West Morgan East Lawrence Water and Sewer Authority.
"5. BCE furnished to the West Morgan East Lawrence Water and Sewer Authority Payment Bond No. 016069745, which was issued by the Ohio Casualty Insurance Company ('Ohio Casualty'), as surety. The Bond is executed by Michael Bolt, on behalf of BCE, as principal, and by Thomas J. Bole on behalf of the Ohio Casualty, as surety."

White's statement that the bond was obtained in part "[t]o fulfill the requirements of ... applicable law" refers to § 39-1-1 et seq. This Court explained in Safeco Insurance Co. of America v. Graybar Electric Co., 59 So.3d 649 (Ala. 2010), that § 39-1-1 et seq. is

"commonly referred to as Alabama's little Miller Act. Federal Ins. Co. v. I. Kruger, Inc., 829 So.2d 732, 734 (Ala. 2002). The Alabama statute is patterned after the Federal Miller Act, now codified at 40 U.S.C. §§ 3131 - 3133. 'The construction given to the federal act has been adopted in Alabama, unless otherwise noted.' Kruger, 829 So.2d at 734 n.1. Generally, when a person has provided labor or materials or has supplied services on a private construction project, the person is entitled under § 35-11-210, Ala. Code 1975, the mechanic's or materialman's lien statute, to file a lien against the private property and subsequently to foreclose on the property, if not paid for those services. However, § 35-11-210 does not apply to public property. Martin v. Holtville High School Bldg., 226 Ala. 45, 145 So. 491 (1933) (public-school building was not subject to foreclosure sale under the predecessor statute to § 35-11-210 ). The Alabama Legislature provided a remedy in 1927 when it codified specific provisions to ensure that materialmen receive full payment for labor or materials supplied on a public-works project. § 39-1-1. Alabama's statute was patterned after a federal act enacted in 1894 called the Heard Act. Ch. 280, 28 Stat. 278 (1894) (since repealed); see also State v. Southern Sur. Co., 221 Ala. 113, 127 So. 805 (1930) (discussing the essential provisions of the state and federal payment-bond statutes existing in 1930). Alabama first amended its public-works-payment-bond statute in 1935 to pattern it after the federal act called the Miller Act (enacted in 1935 to rectify inadequate protections in the Heard Act). See 40 U.S.C. §§ 3131 - 3133 (formerly 40 U.S.C. §§ 270a - 270d ).
" '[T]he purpose of a payment bond required under the little Miller Act is to "shift the ultimate risk of nonpayment from workmen and suppliers to the surety." ' Kruger, 829 So.2d at 736 (quoting American Sur. Co. v. Hinds, 260 F.2d 366, 368 (10th Cir. 1958) ). 'The purpose of the [little Miller] act is to provide security for those who furnish labor and material in performance of government contracts as a substitute for unavailable lien rights, and is liberally construed to accomplish this purpose.' Headley v. Housing Auth. of Prattville, 347 So.2d 532, 535 (Ala. Civ. App. 1977)."

59 So.3d at 655-56. Thus, Bolt Construction contracted with Ohio Casualty to obtain the bond because of a legal requirement for public-works projects that is intended to provide a remedy for suppliers on such projects because suppliers cannot file a materialman's or mechanic's lien against public property for nonpayment.

Consolidated Pipe first contends that the circuit court erred in transferring the case because the bond contract contains a valid and clear forum-selection clause that should have been enforced. Specifically, paragraph 11 of the bond contract provides:

"11. No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the Work or part of the Work is located after the expiration of one year from the date (1) on which the Claimant gave the notice required by Paragraph 4.1 or Paragraph 4.2.3, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Contract, whichever of (1) or (2) first occurs."

(Emphasis added.)

Consolidated Pipe observes that its first claim in this action is asserted under the bond and that "the Work" that is the subject of the bond was located in Morgan County. Therefore, Consolidated Pipe argues, paragraph 11 of the bond contract mandates that Morgan County is the only proper venue for the action. Consolidated Pipe also notes that this Court has repeatedly stated that "a forum-selection clause should be enforced so long as enforcing it is neither unfair nor unreasonable under the circumstances." Ex parte Northern Capital Res. Corp., 751 So.2d 12, 14 (Ala. 1999).

The defendants did not contend below, nor do they assert before this Court, that the enforcement of the forum-selection clause would be unfair or unreasonable or that Consolidated Pipe did not meet the conditions described in paragraph 11 of the bond contract. Instead, their sole argument against the application of the forum-selection clause is that Consolidated Pipe is not a proper "claimant" under the bond contract and therefore that the forum-selection clause contained in the bond contract is irrelevant to determining venue in this action. The defendants reason that the bond secures only payment for creditors "for items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials, or equipment were furnished." Defendants' brief, p. 6. According to the defendants, because the project is on public property, Consolidated Pipe cannot assert a claim based upon the bond because it cannot assert a materialman's or mechanic's lien in this instance.

However, as Consolidated Pipe observes, this argument is founded upon a plain misreading of the bond contract. Paragraph 15.1 of the bond contract defines a "claimant" as follows:

"15.1 Claimant: An individual or entity having a direct contract with [Bolt Construction], or with a first-tier subcontractor of [Bolt Construction], to furnish labor, materials, or equipment for use in the performance of the Contract.[ ]The intent of this Bond shall be to include without limitation in the terms 'labor, materials or equipment' that part of water, gas, power, light, heat, oil, gasoline, telephone service, or rental equipment used in the Contract, architectural and engineering services required for performance of the Work of [Bolt Construction] and [Bolt Construction's] subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials, or equipment were furnished."

(Emphasis added.)

Consolidated Pipe notes that "[t]he reference in paragraph 15.1 to a mechanic's lien is made to clarify that the terms 'labor, materials or equipment,' as used in the bond, are intended to cover not only those items specifically identified, but 'all other items for which a mechanic's lien may be asserted ....' " Reply brief, pp. 2-3. In other words, it is not language that limits who is a "claimant" under the bond, but rather language intended to make it clear that the types of materials and labor that could be included in a mechanic's lien are covered by the bond.

"Words used in a contract will be given their ordinary, plain, or natural meaning where nothing appears to show they were used in a different sense or that they have a technical meaning." Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala. 1998). Under a plain and natural reading of the bond contract, a "claimant" is not limited only to those who could file a materialman's or mechanic's lien. Indeed, such an interpretation would eliminate any supplier as a "claimant" under the bond contract.

The foregoing constitutes the defendants' only argument as to why Consolidated Pipe cannot avail itself of the forum-selection clause in the bond contract. The defendants do not dispute Consolidated Pipe's contention that the forum-selection clause would require a claimant to file an action in Morgan County because the project is located in Morgan County, and they do not argue that Consolidated Pipe does not meet any of the other conditions described in paragraph 11 of the bond contract. As already noted, the defendants also have not contended that enforcement of the forum-selection clause would be unfair or unreasonable under the circumstances. See, e.g., Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 352 (Ala.1997). Therefore, under the forum-selection clause, venue was not only proper in Morgan County, Consolidated Pipe was required to file its action in Morgan County. Accordingly, the circuit court clearly erred in transferring this case to Jackson County.

The defendants also argued before the circuit court that the case should be transferred to the Jackson Circuit Court under the doctrine of forum non conveniens because, they say, Jackson County is the more convenient forum. Section 6-3-21.1, Ala. Code 1975, "provides when a civil action must be transferred under the doctrine of forum non-conveniens." Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 539 (Ala. 2008). However, § 6-3-21.1"only applies if there is more than one court 'in which the action might have been properly filed.' " Ex parte Riverfront, LLC, 196 So.3d 1167, 1173 (Ala. 2015). When a forum-selection clause is enforceable, there is no other court in which the action in question "might have been properly filed." § 6-3-21.1(a), Ala. Code 1975. Accordingly, § 6-3-21.1 has no applicability in this case.

IV. Conclusion

Based on the forum-selection clause, the only proper venue for this action is Morgan County. Therefore, the circuit court erred by granting the motion to transfer. Accordingly, we grant the petition and direct the Morgan Circuit Court to vacate its order transferring this case to Jackson County.

PETITION GRANTED; WRIT ISSUED.

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

      We note that there is no indication that, at the time the circuit court reconsidered its ruling granting the motion to transfer the case, the case had been sent to or docketed in the Jackson Circuit Court. See Ex parte Sawyer, 873 So.2d 166, 167 (Ala. 2003) (explaining that a trial court may not change its mind or reconsider a change of venue once the action has been transferred to and docketed in the new court).

      The defendants agreed with the following statement in their responses to the requests for admission: "Consolidated sold materials to Bolt Construction on credit for the construction of a public work project known as the Vaughn Bridge Road Water Line Relocation Project No. 14018.00 (hereinafter the 'Project')."

      Paragraph 15.2 of the bond contract defines the "Contract" as "[t]he agreement between [the Water Authority] and [Bolt Construction] identified on the signature page, including all Contract Documents and changes thereto." On the signature page of the bond contract, under a block of text titled "CONTRACT" it provides: "Description (Name and Location ): Vaughn Bridge Road Water Line Relocation Project No. 14018.00."


author: PER CURIAM.

text:
    EX PARTE The UTILITIES BOARD OF the CITY OF FOLEY, Alabama, d/b/a Riviera Utilities; Tom DeBell; James Wallace; Kevin Saucier; and Roby Tomlin
    (In re: Charles D. Hilburn, Jr., and Christa Hilburn v. The Utilities Board of the City of Foley, Alabama, d/b/a Riviera Utilities; Tom DeBell; James Wallace; Kevin Saucier; and Roby Tomlin)
    1161168
    Supreme Court of Alabama.
    June 28, 2018
    C. Winston Sheehan, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery; and D. Kirby Howard, Jr., of Ball, Ball, Matthews & Novak, P.A., Mobile, for petitioners.
    W. Lloyd Copeland and Richard H. Taylor of Taylor Martino, P.C., Mobile, for respondents.
   PER CURIAM.

The Utilities Board of the City of Foley, Alabama, d/b/a Riviera Utilities ("Riviera Utilities"), and Tom DeBell, James Wallace, Kevin Saucier, and Roby Tomlin (those individuals are hereinafter collectively referred to as "the Riviera employees") are the defendants in a personal-injury action filed by Charles D. Hilburn, Jr., and his wife, Christa Hilburn, that is pending in the Baldwin Circuit Court. Riviera Utilities and the Riviera employees petition this Court for a writ of mandamus directing the Baldwin Circuit Court to vacate its order denying their motion for a summary judgment as to the claims filed against them by the Hilburns and to enter a summary judgment in their favor. As to the Riviera employees, we grant the petition and issue the writ. As to Riviera Utilities, we deny the petition.

I. Facts and Procedural History

Riviera Utilities is a legislatively created municipal utilities board and a public corporation under the provisions of Act No. 175 adopted at the 1951 regular session of the legislature, as amended (now codified as § 11-50-310 et seq., Ala. Code 1975 ). Riviera Utilities provides electrical, water, wastewater-treatment, natural-gas, and TV-cable services within the corporate limits of the City of Foley. It also provides electrical and other services to other areas of Baldwin County.

On July 22, 2014, Riviera Utilities was one of eight Baldwin County entities that received an "811 ticket," also known as a line-locate ticket, through a computer program known as "KorWeb." Anyone planning to begin excavation is required by statute to give notice to a utility or a one-call-notification center before beginning the excavation work. Alabama 811 is the one-call-notification center for Alabama, commonly known as the "Call Before You Dig" program. Once it receives a call, Alabama 811 electronically notifies its members that have underground utilities, by means of an 811 ticket, about excavation work to be performed so they can mark those utilities before excavation begins. Riviera Utilities employs personnel known as "line-locate technicians," whose job it is to locate and mark underground lines at excavation sites. Riviera Utilities received approximately 16,000 line-locate calls through the Alabama 811 system in 2014, approximately 20,000 in 2015, and approximately 50,000 in 2016. In the early months of 2017, Riviera Utilities received approximately 9,500 line-locate calls through the Alabama 811 system.

The 811 ticket Riviera Utilities received on July 22 stated that "bridge construction" would take place on Baldwin County Road 52 in Robertsdale. Gulf Equipment Corporation was in charge of a bridge-repair project on County Road 52 pursuant to a contract between Gulf Equipment and the Baldwin County Highway Department calling for repairs to an existing box culvert, which is similar to a storm-drain pipe. The construction site was not within the corporate limits of the City of Foley. Riviera Utilities owned, operated, and maintained power lines in the area where the bridge was being repaired; however, Riviera Utilities was not a party to the bridge-repair contract. The power poles near the bridge-repair project contained several power lines. The top three lines on those power poles are 46-KV lines leased by Alabama Power Company; the bottom lines are Riviera Utilities' 7200-KV primary lines.

Kris Deese, a line-locate technician employed by Riviera Utilities, received the 811 ticket generated for the bridge-repair project on July 22. He went to the project site on July 23 to locate and mark any underground lines. While Deese was at the site, he saw a bridge, but there was no equipment present and no one was working. Locating no underground utilities owned or operated by Riviera Utilities at the bridge-repair project site, Deese did not mark anything regarding underground utilities or note the presence of the overhead power lines.

At the time of the accident causing Charles's injuries, DeBell was Riviera Utilities' general manager and CEO, Wallace was its operations manager, Saucier was its risk manager, and Tomlin was its superintendent of safety and training. DeBell worked at Riviera Utilities since 1989. Wallace had been the operations manager at Riviera Utilities since 2010, supervising all five operating divisions of Riviera Utilities-gas, water, electric, wastewater treatment, cable TV, and safety. Saucier had worked at Riviera Utilities since October 2012; the line-locate technicians employed by Riviera Utilities work in the risk and safety department under Saucier's supervision. Tomlin worked at Riviera Utilities from 2009 through the end of 2015. He was a superintendent whose responsibilities were storage, warehousing and inventory, and safety.

On July 31, 2014, Charles was employed by Gulf Equipment on the bridge-repair project. Charles's co-employee, Randall Hayes, was operating a track hoe to drive steel pilings into the ground when the track hoe and/or a steel piling came in contact with an uninsulated overhead electrical power line. The electrical current traveled from the track hoe and/or piling into the body of the track hoe while Charles was touching the body of the track hoe, causing the electrical charge to enter into his hand, travel through his body, and exit via his leg. Charles was permanently disabled by the electrocution injuries he suffered, including a brain injury and memory loss.

The Hilburns sued Riviera Utilities and the Riviera employees in their individual capacities. In the complaint as last amended, the Hilburns alleged:

"22. Prior to July 31, 2014, Riviera [Utilities] and the [Riviera employees] received actual or constructive notice that bridge construction was about to occur on County Road 52 in Baldwin County, Alabama, and that [Charles's] employer, Gulf Equipment Corporation, would be performing the bridge construction.
"23. Riviera [Utilities] and the [Riviera employees] received actual or constructive notice from Alabama [811] on July 22, 2014, that Gulf Equipment Corporation would be performing bridge construction on County Road 52 in Baldwin County, Alabama.
"24. Riviera [Utilities] and the [Riviera employees] received actual or constructive notice that bridge construction was being performed on County Road 52 in Baldwin County, Alabama, when, based upon information and belief, Riviera [Utilities] trucks owned and operated by Riviera [Utilities] drove upon the construction site and observed the construction activities at or near Riviera [Utilities'] uninsulated, energized lines.
"25. Riviera [Utilities] and the [Riviera employees] reasonably anticipated that Gulf Equipment Corporation employees working at the bridge-construction site may come in contact with Riviera [Utilities'] uninsulated, energized power lines."

The Hilburns then asserted claims alleging that Riviera Utilities and the Riviera employees acted negligently and wantonly:

"a. By not insulating the power lines at the bridge-construction site.
"b. By not de-energizing the power lines at the bridge-construction site.
"c. By not re-routing the power lines at the bridge-construction site so the workers engaged in the bridge construction would not come in contact with them.
"d. By not employing fuses or circuit breakers that could immediately de-energize the power lines at the bridge-construction site if they came in contact with people or foreign objects."

The Hilburns alleged that the Riviera employees were "acting within the line and scope of their capacity as agents, servants, or employees of Riviera" Utilities at the time of the accident and that they were "responsible for taking and/or implementing appropriate safety measures when Riviera [Utilities] had actual or constructive notice that persons may come in contact with its uninsulated, energized power lines." The Hilburns also asserted a loss-of-consortium claim on behalf of Christa.

Riviera Utilities and the Riviera employees answered, asserting, among other defenses, discretionary-function immunity, substantive immunity, State-agent immunity, municipal immunity, sovereign immunity, qualified immunity, and absolute immunity. The Hilburns filed a motion for a partial summary judgment as to certain affirmative defenses raised by the Riviera employees asserting "statutory caps on damages and various forms of immunity" or, in the alternative, to strike those defenses. Riviera Utilities and the Riviera employees then filed a motion for a summary judgment as to all of the Hilburns' claims. In responding to that summary-judgment motion, the Hilburns stated that they did not oppose the entry of a summary judgment in favor of DeBell, Wallace, and Tomlin or the entry of a summary judgment in favor of Saucier as to the wantonness claim against him. The Hilburns argued, however, that Saucier was not entitled to a summary judgment as to the negligence claim against him. Moreover, they argued, Riviera Utilities was not entitled to a summary judgment in its favor. Nevertheless, after the trial court heard oral argument, it denied both summary-judgment motions as to all claims. Riviera Utilities and the Riviera employees then filed this petition for a writ of mandamus.

II. Standard of Review

" ' "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) ). 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 Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001) )."

Ex parte Yancey, 8 So.3d 299, 303-04 (Ala. 2008).

III. Analysis

A. Wantonness claims asserted against the Riviera employees

Based on the concessions in the Hilburns' response in the trial court to the Riviera employees' summary-judgment motion and their responsive brief in this Court, we conclude that there is no genuine issue as to any material fact concerning the wantonness claims against the Riviera employees and that the Riviera employees are entitled to a summary judgment as to those claims. Their petition for a writ of mandamus as to the wantonness claims asserted against them is due to be granted.

B. Negligence claims asserted against the Riviera employees

As to DeBell, Tomlin, and Wallace, based on the concessions in the Hilburns' response to the Riviera employees' summary-judgment motion in the trial court and their responsive brief in this Court, we conclude that there is no genuine issue as to any material fact concerning the negligence claims asserted against DeBell, Tomlin, and Wallace and that those employees are entitled to a summary judgment as to the negligence claims against them. Their petition for a writ of mandamus as to the negligence claims against them is due to be granted.

As to Saucier, however, the Hilburns do not concede that he is entitled to a summary judgment as to their negligence claim against him. We therefore address Saucier's argument that he is entitled to State-agent immunity and to a summary judgment in his favor as to the Hilburns' negligence claim.

In Ex parte Cranman, 792 So.2d 392 (Ala. 2000), a plurality opinion, this Court formulated a test for immunity referred to as State-agent immunity. A majority of this Court subsequently adopted the Cranman test in Ex parte Butts, 775 So.2d 173, 178 (Ala. 2000). This Court extended State-agent immunity to municipal employees in City of Birmingham v. Brown, 969 So.2d 910, 916 (Ala. 2007). The standard for State-agent immunity as stated in Cranman is as follows:

"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.

This Court has established a "burden-shifting" process when a party raises the defense of State-agent immunity. Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala. 2006). A defendant asserting State-agent immunity "bears the burden of demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity." Id. If the State agent makes such a showing, the burden then shifts to the plaintiff to show that one of the exceptions to State-agent immunity recognized in Cranman is applicable. Ex parte Kennedy, 992 So.2d 1276, 1282 (Ala. 2008).

In their motion for a summary judgment based on State-agent immunity, the Riviera employees set forth facts they considered sufficient to establish such immunity. The evidence applicable to Saucier, viewed in the light most favorable to the Hilburns, the nonmovants, see Ex parte Price, 256 So.3d 1184 (Ala. 2018), reveals the following facts.

The Hilburns' claims against Saucier are based on the 811 ticket submitted by Gulf Equipment that noted "bridge construction" would be performed during the bridge-repair project on County Road 52. Wallace, the operations manager of Riviera Utilities, testified in his deposition that the line-locate ticket-the 811 ticket-alerted Riviera Utilities to the risk of harm resulting from the proximity of construction equipment to uninsulated electrical wires above the construction site and that Riviera Utilities should have de-energized them or insulated them. Tomlin, who was Riviera Utilities' superintendent of safety and training during the period pertinent to this case, testified in his deposition that the line-locate ticket alerted Riviera Utilities to the risk of harm resulting from the proximity of construction equipment to uninsulated electrical wires above the construction site. He also testified that had he seen the line-locate ticket he would have taken steps to see that that risk was eliminated.

Saucier testified in his deposition that he disagreed with the conclusions as to what Riviera Utilities should have learned from an examination of the 811 ticket, but that factual dispute is not dispositive of the threshold issue whether Saucier has established a prima facie case of State-agent immunity.

The operative facts relevant to this analysis stem from the undisputed fact that Saucier never saw the 811 ticket before the accident that is the basis of this claim. Riviera Utilities, and specifically Saucier's department, did not have any policy or procedure that provided any specific direction to Saucier for supervising line-locate technicians, nor was there a protocol for making further inquiry of the contractor as to the necessity for deactivating overhead wires when notice was received of an impending underground excavation.

The Hilburns contend that whether Riviera Utilities had any such policy or procedure for review of 811 tickets is irrelevant because, they maintain, the information concerning the hazard presented by the bridge-repair project was apparent on the face of the 811 ticket. The Hilburns acknowledge that Saucier did not have actual knowledge of the hazard, but they contend that Deese's knowledge that the 811 ticket stated that "bridge construction" would be taking place, combined with the evidence indicating that other Riviera Utilities employees had experience with job-hazard analysis in bridge-construction scenarios, provided Saucier with constructive knowledge of a potential hazard at the bridge-construction site. If Saucier had constructive knowledge of the impending bridge construction and his job responsibilities included safety precautions regarding overhead power lines, the Hilburns argue, he owed a duty to Charles that allowed no exercise of judgment or discretion; therefore, they insist, there can be no State-agent immunity. On the other hand, the Hilburns argue, if Saucier had no notice of the danger, either actual or constructive, or his job responsibilities did not include safety precautions as to overhead power lines, a view they say is contrary to the evidence, they concede he would have no duty to Charles and hence no liability for that reason. The Hilburns argue that issues of fact as to Saucier's notice of the danger and his job responsibilities preclude the entry of a summary judgment as to their negligence claim against him. Therefore, the Hilburns argue, Saucier is either not liable to the Hilburns because he owed Charles no duty or he is liable and has no immunity.

In the context of review by mandamus of claims subject to a defense of State-agent immunity pursuant to Ex parte Cranman, supra, we first review the facts surrounding the activities of the agent. If those facts support immunity and the burden therefore shifts to the claimant, we review any facts offered to establish an exception to immunity as prescribed in Cranman to determine whether that exception is supported by substantial evidence. Ex parte Price, supra.

As the head of Riviera Utilities' risk and safety department, Saucier testified that his responsibilities are detailed in Riviera Utilities' written position description for that job. Item number 4 in the section of the position description titled "Essential Duties and Responsibilities" states that the risk manager

"[i]nspects and observes equipment, facilities, and work habits of field crews to detect existing or potential accident and health hazards. Responds to complaints of unsafe conditions and evaluates the conditions. Recommends corrective or preventative measures where indicated, develops new policies and protocols to address issues, and coordinates with employees and supervisors to find solutions."

Item number 11 of that section states that the risk manager "[s]upervises and oversees the daily operations of the Line Locate Department."

The line-locate technicians are also supervised by Riviera Utilities' compliance and risk supervisor, Jacqueline McClinton, who works in Saucier's department and whose position description includes monitoring line-locate notifications. Saucier, McClinton, and the line-locate technicians have access to the 811 ticket information; however, as previously noted, Riviera Utilities receives thousands of 811 tickets every year. The operative evidence for determining State-agent immunity deals with Saucier's activities relative to his activities as a State agent, and not with the merits of the Hilburns' underlying tort claim. We must first determine, therefore, whether acting without any policy or procedure that provided for supervising line-locate technicians or a protocol for making further inquiry of the contractor as to the necessity for deactivating overhead wires when notice was received of an impending underground excavation constituted activity on Saucier's part, as head of the risk and safety department, that falls outside the parameters established for immunity in Cranman.

Put another way, the inquiry turns on whether the facts associated with Saucier's management of his department in a manner that failed to prevent the accident made the basis of this claim deprive him of the immunity afforded under Cranman. As previously noted, "[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" a State agent's "formulating plans, policies, or designs" or "exercising his or her judgment in the administration of a department or agency of government, including, but not limited to ... allocating resources ... [and] supervising personnel." Cranman, 792 So.2d at 405.

It is undisputed that Deese was the only employee of Riviera Utilities who actually saw the 811 ticket at issue here, that he perceived no hazard from the wording of the ticket or from his visit to the construction site, and that he did not bring the ticket to the attention of any of his supervisors or anyone else at Riviera Utilities. Deese is not a defendant; therefore, the availability of immunity for his actions is not before us.

In light of the thousands of 811 tickets submitted annually, Saucier's failure to manage his department in a manner that would have enabled him to prevent the incident made the basis of this action falls squarely within the immunity from liability for actions based upon a State agent's formulating plans, policies, or designs or exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, allocating resources and hiring and supervising personnel. That Saucier may have had constructive notice, as the Hilburns urge, is a factor that could be of critical importance in a proceeding against an employee of an entity not entitled to immunity, such as a private utility, but is not determinative in this proceeding where the issue is the employee's entitlement to immunity.

State-agent immunity under Cranman having been established, the burden then shifted to the Hilburns "to show, by substantial evidence, that one of the two exceptions to State-agent immunity recognized in Cranman applies." Ex parte Price, 256 So.3d at 1191 (emphasis added). See also Ex parte City of Homewood, 231 So.3d 1082, 1088 (Ala. 2017) ("Because the materials submitted by the officers established that they qualified for immunity, the burden then shifted to Mines to show that one of the two Cranman exceptions to immunity applied."). The only possible exception here deals with the merits of the claim as they apply to whether the State agent acted "willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law." Cranman, 792 So.2d at 405.

We turn, therefore, to the Hilburns' contention that State-agent immunity is not available to Saucier as to their negligence claim against him. The Hilburns contend that Saucier cannot be immune because, they say, he disregarded his duty to Charles and, in doing so, acted beyond his authority or under a mistaken interpretation of the law and that, therefore, he forfeited his State-agent immunity.

We see no substantial evidence here that Saucier exceeded his authority or that he acted under a mistaken interpretation of law. His discharge of his duties as head of the risk and safety department fall well within the parameters of the authority conferred on him. The allegation of the commission of a tort was once viewed as evidence of action in excess of authority. See Elmore v. Fields, 153 Ala. 345, 351, 45 So. 66, 67 (1907), in which this Court found immunity unavailable to the State agent in his individual capacity and observed that "the authorities hold that [a State agent] has no authority to act for the state in the commission of a tort." This view no longer prevails. In Taylor v. Shoemaker, 605 So.2d 828 (Ala. 1992), cited with approval in Cranman, the Court noted that the holding in Elmore v. Fields that the commission of a tort constituted acting beyond authority had subsequently been very clearly rejected. Moreover, there is no evidence indicating that Saucier relied on a mistaken interpretation of state law simply because the Hilburns alleged that he was guilty of an unintentional tort in the discharge of his duties as a State agent.

Saucier has demonstrated that he has "(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." BOC Group, 823 So.2d at 1272. Therefore, his motion for a summary judgment as to the Hilburns' negligence claim asserted against him was due to be granted on the basis of State-agent immunity.

C. Claims asserted against Riviera Utilities

Riviera Utilities argues that, as a municipal utility, it is a government entity entitled to substantive immunity. Substantive immunity shields a municipality from liability for the negligent acts of its employees "in those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart [a municipality's] legitimate efforts to provide such public services." Rich v. City of Mobile, 410 So.2d 385, 387 (Ala. 1982). The substantive-immunity rule is given effect in the context of "those public service activities of governmental entities ... so laden with the public interest as to outweigh the incidental duty to individual citizens." Id. at 387-88. Riviera Utilities contends that because it provides utility services to the public, the substantive-immunity rule applies here. Moreover, it argues, its participation in the 811 ticket program is a benefit to itself and to the public.

The Hilburns argue that Riviera Utilities has not demonstrated that it is entitled to substantive immunity. "[T]he lack of anything other than an incidental duty to a particular individual prevents the municipality from being liable from damages, because a breach of a duty owed to the general public will not form the basis for a negligence claim by an individual citizen." Bill Salter Advertising, Inc. v. City of Atmore, 79 So.3d 646, 652 (Ala. Civ. App. 2010). In this case, the Hilburns argue, Riviera Utilities did not owe a duty to the general public, but to the employees of Gulf Equipment Corporation who were working on the bridge-repair project in close proximity to Riviera Utilities' overhead power lines. According to the Hilburns, the safety measures they allege Riviera Utilities should have implemented would not have been directed toward the general public, but only toward the Gulf Equipment employees working on the bridge-repair project.

We conclude that, because the Hilburns' claims against Riviera Utilities did not involve actions that took place within the city limits of Foley, Riviera Utilities clearly is not entitled to substantive immunity. The cases cited by Riviera Utilities are distinguishable. See, e.g., Rich v. City of Mobile, in which this Court found the municipality immune from claims alleging negligent inspection by city plumbing inspectors checking an individual residence in the city for compliance with the city's plumbing code, and Bill Salter Advertising, Inc. v. City of Atmore, 79 So.3d 646, 653 (Ala. Civ. App. 2010), in which the Court of Civil Appeals held that enactment of a sign ordinance for the benefit of the citizens of the municipality is a municipal function giving rise to substantive immunity and that an employee enforcing the ordinance shares in that immunity, following Tutwiler Drug Co. v. City of Birmingham, 418 So.2d 102, 105 (Ala. 1982). We note, however, that the unavailability of substantive immunity for Riviera Utilities does not foreclose the availability to it of any defense based upon § 11-93-2, Ala. Code 1975, the statutory cap on damages afforded a governmental entity. This defense has been asserted by Riviera Utilities in the trial court and will be addressed in further proceedings in the trial court. Because Riviera Utilities is not entitled to a summary judgment on the basis of substantive immunity, the trial court properly denied its motion for a summary judgment on this basis.

IV. Conclusion

Because the Hilburns concede that the Riviera employees are entitled to a summary judgment as to the wantonness claims asserted against them and that DeBell, Wallace, and Tomlin are entitled to a summary judgment as to the negligence claims asserted against them, they have established a clear legal right to a summary judgment on those claims. Because Saucier has demonstrated that he is entitled to State-agent immunity as to the negligence claim asserted against him, he has established a clear legal right to a summary judgment on that claim. However, because Riviera Utilities has not demonstrated that it is entitled to substantive immunity as to the claims asserted against it, it has not established a clear legal right to a summary judgment on those claims. Therefore, we grant the petition only as to the Riviera employees and issue a writ directing the Baldwin Circuit Court to vacate its order of August 29, 2017, denying a summary judgment as to the Riviera employees and to enter a summary judgment in favor of DeBell, Wallace, Tomlin, and Saucier as to the claims asserted against them. We deny the petition as to Riviera Utilities.

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

Champ Lyons, Jr., Special Chief Justice, and Pamela Baschab, Jean Williams Brown, Robert Bernard Harwood, Jr., Gorman Houston, and Thomas A. Woodall, Special Justices, concur.

Terry L. Butts, Special Justice, concurs in the result in part and dissents in part.

TERRY L. BUTTS, Special Justice (concurring in the result in part and dissenting in part).

As to Tom DeBell, James Wallace, and Roby Tomlin, I concur in the result of granting the petition for a writ of mandamus as to all claims against them on the basis of State-agent immunity.

As to Kevin Saucier, I concur in the result only in granting the petition for a writ of mandamus on the wantonness claim against him because the Hilburns do not oppose it. As to granting the petition for the writ of mandamus on the negligence claim against Saucier, however, I dissent. I would deny the petition as to that negligence claim and allow the trial court to address that issue going forward. Ex parte Cooper Tire & Rubber Co., 987 So.2d 1090, 1101 (Ala. 2007) (noting that this Court is "aware of the fundamental disinclination of the appellate courts to intrude into the trial court's province in conducting the litigation process"); Ex parte Franklin Cty. Dep't of Human Res., 674 So.2d 1277, 1280 (Ala. 1996) ("Fact-driven immunity questions should be first decided in the trial court, with a developed record.").

As to Riviera Utilities, I concur in the result as to denying the petition for a writ of mandamus as to all claims asserted against it.

      A track hoe is a piece of heavy construction equipment similar to a backhoe.

      Because the trial court denied the motions for a summary judgment without explanation, we can only speculate as to whether it found immunity and then deemed an exception applicable or simply found no basis for immunity for Saucier.

      The Hilburns do not assert any exception based upon willful, malicious, fraudulent, or bad-faith conduct. Indeed, as previously noted, the Hilburns conceded below and in this Court that their wantonness claim against Saucier, requiring a lesser degree of culpability than the conduct involved in the aforementioned exceptions, was due to be dismissed.

      "Mandamus review of the denial of a summary-judgment motion 'grounded on a claim of immunity' is an exception to the general rule against interlocutory review of the denial of summary-judgment motions. Ex parte Auburn Univ., 6 So.3d 478, 483 (Ala. 2008) ; Ex parte Hudson, 866 So.2d 1115, 1120 (Ala. 2003). In those exceptional cases, '[w]e confine our interlocutory review to matters germane to the issue of immunity. Matters relevant to the merits of the underlying tort claim, such as issues of duty or causation, [we leave] to the trial court....' 866 So.2d at 1120."
      Ex parte Simpson, 36 So.3d 15, 22 (Ala. 2009) ; see also Ex parte Monroe Cty. Bd. of Educ., 48 So.3d 621, 628 n.2 (Ala. 2010).

      Note from the reporter of decisions: Canon 3.C of the Canons of Judicial Ethics requires a Justice to disqualify himself or herself in any proceeding in which the Justice's impartiality might reasonably be questioned. On January 11, 2018, the Chief Justice and Associate Justices recused themselves from consideration of this case. Pursuant to § 149, Ala. Const. 1901, the following former Associate Justices and Appellate Judges were appointed to serve as the special Supreme Court in this case: Champ Lyons, Jr., Pamela Baschab, Jean Williams Brown, Terry L. Butts, R. Bernard Harwood, Jr., Gorman Houston, and Thomas A. Woodall.