Bryson v. Town of Mosses (Ex parte Harris)

• Decision Date: 29 July 2016
• Docket Number: 1141345,1141385.
• Citation: 216 So.3d 1201
• Parties: Ex parte Jimmy HARRIS. (In re Geraldine Grant Bryson v. Town of Mosses and Jimmy Harris). Ex parte Town of Mosses. (In re Geraldine Grant Bryson v. Town of Mosses and Jimmy Harris).
• Court: Alabama Supreme Court

216 So.3d 1201

Ex parte Jimmy HARRIS.

(In re Geraldine Grant Bryson

v.Town of Mosses and Jimmy Harris).

Ex parte Town of Mosses.

(In re Geraldine Grant Bryson

v.Town of Mosses and Jimmy Harris).

1141345

1141385.

Supreme Court of Alabama.

July 29, 2016.

Rick A. Howard and April W. McKay of Holtsford, Gilliland, Higgins, Hitson & Howard, P.C., Montgomery, for petitioner Jimmy Harris.

Randall Morgan and Elizabeth Brannen Carter of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for petitioner Town of Mosses.

Michael G. Strickland and Blakely W. Barnes of Strickland & Kendall, LLC, Montgomery, for respondent Geraldine Grant Bryson.

BOLIN, Justice.

The Town of Mosses ("the Town") and its employee, Jimmy Harris, the Town's chief of police, separately petition this Court for a writ of mandamus directing the Lowndes Circuit Court to enter a summary judgment in their favor on certain claims asserted against them by Geraldine Grant Bryson. We have consolidated their petitions for the purpose of writing one opinion.

Facts

At the time of the events giving rise to this action, Bryson operated an entertainment venue known as "The Spot." Bryson described "The Spot" as a "community center for all activities." "The Spot" had pool tables and arcade games, sold food, and hosted social and recreational events. Bryson obtained from the Town a business license to operate "The Spot"; the license prohibited the sale of alcohol on its premises. Bryson subsequently requested that the Town grant her a liquor license, but the Town's council denied her request. It is undisputed that Bryson was never granted a liquor license for "The Spot," by either the Town or the State of Alabama Alcoholic Beverage Control Board ("the ABC Board").

Bryson rented "The Spot" to a deejay, who planned to host an event on its premises on the evening of May 2, 2010. Bryson was paid a rental fee of $75. The deejay hosting the event distributed flyers in the community advertising that a "beer bash" was going to be held at "The Spot" on May 2, 2010. Bryson testified that she did not participate in distributing the flyers in the community and that she did not learn of the flyers until the evening of the event. Approximately 200 people turned out for the event at "The Spot," even though the entertainment portion of the event was ultimately canceled by the deejay. Although Bryson, who was at "The Spot" on the night of May 2, 2010, testified that she did not see anyone consuming alcoholic beverages at the event, she acknowledged that the deejay hosting the event had brought alcohol to "The Spot" that he planned to "give ... away [to] the community for showing support for the center."

Walter Hill, the Town's mayor, was contacted by a citizen and was told that flyers were being circulated in the community advertising a "beer bash" at "The Spot" at which individuals could pay an admission fee and consume alcohol inside "The Spot." Hill stated that he notified Harris, the Town's police chief, of the call informing him of the "beer bash" being advertised at "The Spot." Hill told Harris that the matter needed to be investigated and that he would contact the Drug Task Force for the 2d Judicial Circuit ("the task force") as to how to proceed. In the meantime, Harris had obtained one of the flyers advertising the "beer bash" at the "The Spot," which stated that the price of admission to the event was $7.00. Harris then drove by "The Spot" and witnessed several people standing outside. Pursuant to the instructions received from the task force, Harris, along with officers from other law-enforcement agencies, entered "The Spot," where they observed people consuming alcohol.

Harris testified that he did not actually witness the sale of alcohol on the premises of "The Spot," but he stated that it was his understanding that the business license the Town issued for "The Spot" prohibited alcohol from even being present on the premises. According to the police report of the events on May 2, 2010, Bryson was arrested for "selling alcohol without [a] license."¹ Harris testified that Kelvin Mitchell, police chief for the City of Hayneville, which participated in the seizure and arrest at "The Spot," made the determination to arrest Bryson. Bryson testified that Harris arrested her. Over 200 bottles of beer were seized from the premises. The charges against Bryson were ultimately dismissed because the Town was unable to produce a witness who could testify to paying an admission to "The Spot" and drinking alcohol on the premises.

On May 2, 2012, Bryson sued the Town and Harris, in his individual capacity, in the Lowndes Circuit Court, asserting claims of malicious prosecution, false arrest, false imprisonment, harassment, intentional infliction of emotional distress, libel, and slander. Bryson specifically alleged that Harris was acting within the line and scope of his employment as the Town's chief of police when she was arrested and that her claims arose from the willful and intentional acts of the defendants, which she says were designed to embarrass and harm her. On August 24, 2012, the defendants answered Bryson's complaint, generally denying the allegations and asserting certain affirmative defenses, including the defense of immunity.

On May 18, 2015, the defendants moved the trial court for a summary judgment, arguing, among other things, that Harris had probable cause to arrest Bryson and that Harris was immune from suit pursuant to § 6–5–338(a), Ala.Code 1975, and the doctrine of State-agent immunity set forth in Ex parte Cranman, 792 So.2d 392 (Ala.2000), a plurality opinion, and adopted by this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000). The Town argued that it is absolutely immune from suit for all intentional torts of its agents pursuant to § 11–47–90, Ala.Code 1975, and that it also enjoys the State-agent immunity afforded Harris, as its employee.

On August 3, 2015, Bryson filed a response in opposition to the defendants' summary-judgment motion, presenting certain evidence that, she says, establishes that Harris's actions relative to her arrest were motivated by malice toward her. Bryson also challenged the defendants' reliance upon the affidavit of Valencia Aaron, an enforcement agent with the ABC Board, that the defendants presented in support of their summary-judgment motion. Bryson moved to strike the affidavit, arguing that the defendants failed to produce the affidavit in a timely manner and that Aaron had failed and/or refused to make herself available to Bryson for a deposition.

On August 4, 2015, the defendants filed a response in opposition to Bryson's motion to strike Aaron's affidavit, contending that they had produced Aaron's statement to Bryson on May 8, 2014, in response to certain interrogatories propounded to them on April 24, 2014. The defendants also argued that they had no affiliation with Aaron and thus had no ability to compel her testimony.

On August 13, 2015, the trial court entered an order striking Aaron's affidavit and denying the defendants' motion for a summary judgment. The defendants separately petitioned this Court for a writ of mandamus. We grant Harris's petition in part and deny it in part and issue the writ (case no. 1141345); we grant the Town's petition and issue the writ (case no. 1141385).

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) ).

Discussion

As an initial matter, we note that Bryson filed in this Court—in response to each petition for a writ of mandamus—a document entitled "preliminary opposition" to the petition. Bryson states in each of those documents that the Town and Harris have relied so extensively on Aaron's stricken affidavit in the briefs filed in support of their petitions for a writ of mandamus as to have irreparably tainted those petitions. Bryson moves this Court to strike the briefs filed by the Town and Harris in support of their petitions for a writ of mandamus and to deny their...