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Rel. 10/26/2007

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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2007-2008 _________________________ 1051249 and 1051304 _________________________ Ex parte Kathy Sawyer and James R. Finch Ex parte Sonya Stevens PETITIONS FOR WRIT OF MANDAMUS (In re: Laura Percer v. Kathy Sawyer et al.) (Morgan Circuit Court, CV-04-458) PARKER, Justice. The petitioners, Kathy Sawyer, James R. Finch, and Sonya Stevens, present this case as one concerning a State-agent-

1051249/1051304 immunity issue. We note first that for many years this Court has sought to ensure the availability of State-agent immunity to those entitled to protection from tort claims resulting from discretionary acts as agents of the State. In recent years we have clarified the requirements for State-agent

immunity, and we have opened the doors of this Court for the expedited review of any denial of a motion to dismiss when that motion was predicated on an assertion of State-agent immunity. An expedited review can be had by an interlocutory appeal or a petition for a writ of mandamus, and many

defendants have availed themselves of such a review. This case, however, is not a State-agent-immunity case. It requires us to review the denial of an untimely motion for a summary judgment and to evaluate whether a petitioner has shown good cause for this Court to review an otherwise

untimely petition for a writ of mandamus. The facts of the case, however, strongly suggest a need for guidance to both the bench and the bar regarding the requirements for

soliciting the protection of State-agent immunity and for a review of a denial of a motion asserting such immunity. Two petitions are before this Court, each seeking a writ

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1051249/1051304 of mandamus directing and to the Morgan Circuit Court in to vacate of the

certain

orders

issue

judgments

favor

petitioners, the defendants in a wrongful-death action. One of the petitions was filed by Kathy Sawyer, commissioner of the State Department of Mental Health and Mental Retardation at the time the cause of action arose, and James R. Finch, then director of the Lurleen B. Wallace Developmental Center in Decatur ("the Wallace Center"), the place where the cause of action arose. The other petition is filed by Sonya Stevens, an employee at the Wallace Center at the time the cause of action arose, whose name was years substituted after the for fictitiously named

defendants

three

original

wrongful-death

action was filed. Because the petitions arise from the same basic set of facts and are inextricably intertwined, we have consolidated the two petitions for the purpose of writing one opinion. The Sawyer and Finch petition seeks a writ directing the trial court to grant was Sawyer and on Finch's summary-judgment immunity, even

motion, though

which the

grounded was not

State-agent filed.

motion

timely

Stevens

requests

relief in the form of an order directing the trial court (1)

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1051249/1051304 to vacate its March 20, 2006, order denying her motion to dismiss, (2) to vacate its June 8, 2006, order denying her motion for leave to file a motion for a summary judgment, and (3) to enter an order granting her May 25, 2006, summaryjudgment motion on the ground that time-barred. Finch's the claims against her are

For the reasons presented, we deny Sawyer and

petition and grant Stevens's petition. I. Factual and Procedural Posture

The petitions are the latest filings in litigation that began on May 18, 2001, when Laura Percer filed a wrongfuldeath action in the Montgomery Circuit Court. The decedent was her sister, Cynthia Shirley, a resident at the Wallace Center. Shirley died on August 16, 2000, eight days after being

hospitalized for head injuries sustained on August 8, 2000, when she fell and hit her head on the floor while Stevens was "redirecting" her. Percer named as defendants in the wrongfuldeath action the State Department of Mental Health and Mental Retardation ("the Department"), Sawyer, Finch, and several fictitiously named defendants who, she asserted, had had

various responsibilities for and toward Shirley. The complaint included nine counts, eight of which demanded judgment in the

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1051249/1051304 amount of $5 million each. The ninth count requested that the court require the Department and all future commissioners of the Department to ensure that the residents of the Wallace Center are safe and that its employees are properly trained, supervised, and required to follow established policies and procedures. Percer amended her complaint on November 15, 2000, to clarify that Finch was being sued in his individual capacity only. On March 17, 2003, the trial court, in accord with a writ of mandamus issued by this Court, 1 dismissed all claims against the Department and all claims against Sawyer in her official capacity; the claims against her in her personal capacity remained pending. The trial court also dismissed all claims for injunctive relief because Percer lacked standing to bring such claims. The transfer defendants the of case the moved to the Montgomery Circuit Court the Court for to the

the

Morgan and

Circuit

convenience Circuit

parties the

witnesses; and the

Montgomery then

Court

denied

motion,

defendants

Ex parte Alabama Department of Mental Health & Mental Retardation, 837 So. 2d 808 (Ala. 2002). 5

1

1051249/1051304 petitioned this Court for a writ of mandamus. On May 7, 2004, this Court issued the writ of mandamus and ordered the

Montgomery Circuit Court to grant the defendants' motion for a change of venue. Ex parte Sawyer, 892 So. 2d 919 (Ala. 2004). The Morgan Circuit Court set the case for trial on February 13, 2006. On September 27, 2005, shortly after deposing Stevens, Percer filed a motion to amend the complaint, seeking to add Stevens as a defendant and substituting her for certain of the fictitiously named defendants. Sawyer and Finch opposed the motion. On or about January 12, 2006, Sawyer and Finch filed a motion to continue the February 13, 2006, trial and to modify the then current scheduling order. The motion stated the

following reasons for seeking a continuance: a scheduling conflict with another case involving Sawyer; a need by all parties for additional discovery; and time conflicts of the defendants' attorneys. They also stated in their motion that they were entitled to State-agent immunity under Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), and that such immunity is effectively lost if a case is erroneously permitted to go to

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1051249/1051304 trial, but they did not invoke the protection of State-agent

immunity at that time. Instead, they expressed an intent to file a summary-judgment motion asserting State-agent immunity and requesting the court to enter a summary judgment on that basis. The motion to continue stated that Sawyer and Finch had refrained from filing a summary-judgment motion based on

State-agent immunity while the court's ruling on Percer's motion adding Stevens as a defendant was pending, but it

offered no explanation of the reason for refraining. The court held a hearing on the motion to continue and continued the trial to June 19, 2006. The continuance order, dated January 17, 2006, also included a scheduling order that was obviously intended to bring the matter to trial by June 19; the order suggested that the deadlines in the order were to be modified by the parties at their peril. The first

deadline was a February 7, 2006, deadline for filing summaryjudgment motions. The court granted Percer's motion for leave to amend on January 18, 2006, and Percer filed an amended complaint adding Stevens as a named defendant on January 24, 2006. Percer

served Stevens with a copy of the summons, complaint, and

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1051249/1051304 amended complaint on February 11, 2006. On March 1, 2006, Stevens petitioned this Court for a writ of mandamus ordering the trial court to vacate its January 18, 2006, order joining her as a defendant. On March 14, 2006, the defendants filed a motion to stay the proceedings in the trial court pending this Court's ruling on Stevens's petition; the trial court denied that motion on March 20, 2006. This Court denied Stevens's petition on May 3, 2006, without an opinion, but with an order stating that Stevens had not shown that she had a clear legal right to the relief she sought. Ex parte Stevens (No. 1050688, May 3, 2006). On April 25, 2006, Sawyer and Finch filed a motion for a protective order, seeking to prevent Percer from taking their depositions until the trial court ruled on their State-agentimmunity claim, which they had not yet asserted in any filing. On May 3, 2006, Sawyer and Finch filed a motion for a judgment, asserting their State-agent-immunity summary The

claim.

trial court denied the motion for a protective order and the motion for a summary judgment two days later, holding that the summary-judgment motion, filed after the February 7, 2006, deadline it had set in its scheduling order, was untimely. On

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1051249/1051304 May 17, 2006, Sawyer, Finch, and Stevens filed a motion to reconsider and a motion to modify the scheduling order, which the trial court denied two days later. Percer filed on May 17, 2006, a motion for sanctions and sought an order requiring Sawyer and Finch to sit for depositions. The trial court denied that motion on May 24, 2006. The petitioners then filed in this Court emergency motions to stay, and the circuit court proceedings were stayed on June 16, 2006. The petitioners then filed the instant petitions. II. Standard of Review "'"While the general rule is that denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus." Ex parte Rizk, 791 So. 2d 911, 912 (Ala. 2000). A writ of mandamus is an extraordinary remedy available only when there is: "(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) properly invoked jurisdiction of the court." Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001).'" Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006) (quoting Ex parte Nall, 897 So. 2d 541, 543 (Ala. 2003)). III. Legal Analysis Although common facts justify the consolidation of these 9

1051249/1051304 petitions, each petition presents issues that are best

analyzed independently. Sawyer and Finch's petition poses the following issue: "Whether [Sawyer and Finch] are entitled to Stateagent immunity, when their jobs were exclusively administrative in nature and (1) required the exercise of discretion in allocating resources and supervising personnel, (2) involved the development and implementation of plans, policies, and procedures, and (3) for which no guidelines or detailed checklists existed." In Ex parte Cranman, supra, this Court stated the rule

governing State-agent immunity: "A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's "(1) formulating plans, policies, and designs; or "(2) exercising his or her judgment in the administration of a department or agency of the government, including but not limited to examples such as: "... "(b) allocating resources, "... [or] "(d) ... supervising personnel ...." 792 So. 2d at 405. After Cranman was decided, this Court

10

1051249/1051304 stated that to "if any employee rules or failed to discharge such as duties those

pursuant

detailed

regulations,

stated on a checklist, ... it is possible that that employee would not be entitled to State-agent immunity." Ex parte

Butts, 775 So. 2d 173, 178 (Ala. 2000). In the issue posed in Sawyer and Finch's petition, the State employees are performing administrative jobs, are

required to exercise their judgment in allocating resources and supervising personnel, are involved in developing plans and procedures, and are not working from required guidelines or checklists. They would, therefore, meet the first part of the test for eligibility for State-agent immunity. however, that a portion of the test denies a We note,

State agent

immunity "from civil liability in his or her personal capacity ... when the State agent acts willfully, maliciously,

fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law." Cranman, 792 So. 2d at 405. Because this element of the test requires knowledge of the mental state of the State agent that was not included in the statement of the issue, the question whether the State employees are entitled to State-agent immunity may be answered

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1051249/1051304 in the affirmative only if the State employees were not acting in one of the proscribed manners when the cause of the action arose. Accordingly, as we have attempted in the past to make clear, "'[t]he applicability of the doctrine of discretionary function must be determined on a case-by-case basis, and it is a question of law to be decided by the trial court.' Ex parte Davis, 721 So. 2d 685, 689 (Ala. 1998)." Ryan v. Hayes, 831 So. 2d 21, 28 (Ala. 2002). A. State-Agent Immunity Justice Lyons dissented from this Court's unpublished order staying the proceedings dissent, Justice Lyons stated: "I do not consider a defense of State-agent immunity in an action against a State agent in his or her individual capacity to be a matter involving subject-matter jurisdiction of the court. This Court has held that State-agent immunity from an action alleging negligence arising out of a discretionary act is an affirmative defense that must be raised and proved by the defendant. See Bell v. Chisom, 421 So. 2d 1239 (Ala. 1982). See also Lightfoot v. Floyd, 667 So. 2d 56, 64 (Ala. 1995) ('Qualified immunity [now referred to as State-agent immunity] is an affirmative defense that the defendant must raise and prove, and upon a defendant's motion for summary judgment the burden is on the defendant to show that his acts are entitled to such immunity. Phillips v. Thomas, 555 So. 2d 81 (Ala. 1989).')." Although 12 to 25 years 12 old, the opinions cited by in the trial court. In his

1051249/1051304 Justice Lyons remain valid precedent. Justice Lyons also noted that Sawyer and Finch rely on Larkins v. Department of Mental Health & Mental Retardation, 806 So. 2d 358 (Ala. 2001), as justification for their immunity claim. That case deals with a court's lack of subject-matter jurisdiction when the claim is against the State and not when the claim is against an official in his or her individual capacity. The State cannot waive its immunity from suit, and it follows that the court can have no jurisdiction where no suit is possible. A

defendant who is being sued in his or her individual capacity does not have the same immunity as the State has; he or she must submit to of a the the authority immunity court of the trial "Under court the for a

determination Constitution,

issue.

Alabama general

circuit

'shall

exercise

jurisdiction in all cases except as may be otherwise provided by law.' Amend. No. 328,

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