Ex parte Butts

• Decision Date: 21 July 2000
• Citation: 775 So.2d 173
• Parties: Ex parte Jimmy BUTTS et al. (In re Dalton Phillips et al. v. Alabama Department of Conservation and Natural Resources et al.)
• Court: Alabama Supreme Court

775 So.2d 173

Ex parte Jimmy BUTTS et al.

(In re Dalton Phillips et al. v. Alabama Department of Conservation and Natural Resources et al.)

1981166.

Supreme Court of Alabama.

July 21, 2000.

Bill Pryor, atty. gen., and Raymond L. Jackson and Alice Ann Byrne, asst. attys. gen., for petitioners Department of Transportation, Jimmy Butts, Ray Bass, Douglas Kilpatrick, Terry McDuffie, Bob Campbell, and John A. Hayles.

William A. Gunter, asst. atty. gen., for petitioners Department of Conservation and Natural Resources and James Martin.

Michael J. Crow and Dana G. Taunton of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery; and James E. Williams of Melton, Espy, Williams & Hayes, P.C., Montgomery, for respondents.

On Rehearing Ex Mero Motu

LYONS, Justice.

The opinion of March 24, 2000, is withdrawn, and the following is substituted therefor. Jimmy Butts, James D. Martin, Ray Bass, Douglas "Mitch" Kilpatrick, Terry McDuffie, Bob Campbell, and John A. Hayles are defendants in a wrongful-death action pending in the Montgomery Circuit Court. The plaintiffs in that action are Wendy Phillips, as the administratrix of the estate of Randall "Lane" Phillips; Ann Williams, as the administratrix of the estate of Frank "Dee" Williams; and the two deceased men's minor children, Dalton Phillips, Tanner Phillips, Haley Ann Williams, and Dee Ann Williams. The defendants petition for a writ of mandamus directing Judge Charles Price to dismiss the wrongful-death action as it relates to Martin in his official capacity, on the ground of State immunity, and as it relates to all of them in their individual capacities, on the ground of State-agent immunity. We grant the petition in part and deny it in part.

The Alabama Department of Conservation and Natural Resources ("ADOC") owned a bridge over Lake Martin known as the Old Kowaliga Bridge ("the old bridge"). When a new Kowaliga Bridge was constructed to take the place of the old bridge, ADOC closed the old bridge to traffic and designated it for use as a public fishing pier. The old bridge fell into a state of disrepair, and ADOC decided to demolish it. ADOC solicited bids for the demolition project. The Alabama Department of Transportation ("ALDOT") offered the lowest bid, at $67,681; ADOC accepted that bid. ALDOT formulated a plan and assembled a crew for the demolition project. During the demolition of the old bridge, however, it collapsed prematurely. Two ALDOT employees, Randall Phillips and Frank Williams, who were working on the old bridge when it collapsed, died when pieces of the old bridge pinned them at the bottom of Lake Martin.

The widows of Phillips and Williams, acting as administratrices of their husbands' estates, along with their minor children (hereinafter the widows and the minor children will be sometimes referred to collectively as "the families"), sued ADOC; ALDOT; Martin, the former director of ADOC; Butts, the former director of ALDOT; Bass, ALDOT's chief engineer; Kilpatrick, ALDOT's chief maintenance engineer; McDuffie, an assistant bridge-maintenance engineer for ALDOT; Campbell, an assistant bridge-maintenance engineer for ALDOT; and Hayles, the supervisor of the ALDOT work crew to which Phillips and Williams were assigned. Each of the individual defendants was sued in both his official capacity and his individual capacity. The families' complaint alleged (1) that Butts had negligently or wantonly authorized the use of ALDOT personnel to demolish the bridge; (2) that Martin had negligently or wantonly allowed ALDOT to use unqualified personnel to demolish the bridge; (3) that the defendants had negligently or wantonly failed to halt the demolition project after discovering that insufficient funds had been allocated to the project; (4) that the defendants had negligently or wantonly hired, trained, and/or supervised the personnel assigned to demolish the bridge; (5) that Bass had negligently or wantonly submitted ALDOT's bid for the project; (6) that Kilpatrick had negligently or wantonly developed the plan to demolish the bridge; (7) that McDuffie, Campbell, and Hayles had negligently or wantonly implemented the plan; and (8) that Kilpatrick, McDuffie, Campbell, and Hayles had negligently or wantonly assumed the duties of a "bridge and/or structural engineer," without proper qualifications for those duties.

The defendants moved to dismiss the complaint, pursuant to Rule 12(b)(6), Ala. R.Civ.P., raising the defenses of sovereign and discretionary-function immunity, now referred to as "State immunity" and "State-agent immunity," respectively. See Ex parte Cranman, [Ms. 1971903, June 16, 2000] ___ So.2d ___ (Ala.2000). On November 19, 1998, the trial court entered an order granting the motion as to ADOC and ALDOT, and as to Butts, Bass, Kilpatrick, McDuffie, Campbell, and Hayles in their official capacities. The trial court denied the motion "as to the Defendants in their individual capacities." On April 19, 1999, the defendants Martin, Butts, Bass, Kilpatrick, McDuffie, Campbell, and Hayles (hereinafter sometimes referred to collectively as "the employees") filed this petition for the writ of mandamus, contending that Martin is entitled to a dismissal of the families' claims made against him in his official capacity, on the ground of State immunity, and that all of them are entitled to a dismissal of the families' claims made against them in their individual capacities, on the ground of State-agent immunity.

I.

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 United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).

The families argue that we should dismiss the employees' petition because, the families say, the defendants cannot show "the lack of another adequate remedy." The families contend that the employees should have petitioned for permission to appeal an interlocutory order, pursuant to Rule 5, Ala.R.App.P. Rule 5 allows a party to petition this Court for permission to appeal from an interlocutory order that "involves a controlling question of law as to which there is substantial ground for difference of opinion" and as to which "an immediate appeal... would materially advance the ultimate termination of the litigation and ... would avoid protracted and expensive litigation." The party seeking permission to appeal pursuant to Rule 5 must do so within 14 days of the entry of the order from which it wishes to appeal. Here, the employees did not seek mandamus relief until five months after the trial court had entered its order denying a dismissal of the claims they complain of here.

This Court has held that a Rule 5 petition is an appropriate means by which a State agency or employee can seek appellate review of an order denying a claim of immunity. See Town of Loxley v. Coleman, 720 So.2d 907 (Ala.1998). However, this Court also has held that a petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity. Ex parte Alabama Dep't of Forensic Sciences, 709 So.2d 455 (Ala.1997). Therefore, the families' argument that Rule 5 provides the only means by which a claim of immunity can be reviewed is not well taken.

We note that this Court has amended Rule 21, Ala.R.App.P., to provide that a petition for a writ of mandamus must be filed within a "reasonable time," and that "[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court shall be the same as the time for taking an appeal." Under the rule as amended, a petition in a case such as this must be filed within 42 days of the order as to which the petitioner seeks a review unless the party can show good cause for delaying beyond the 42 days.¹ Rule 21 as amended, however, does not become effective until September 1, 2000. Presently, there is no time limit for filing a petition for the writ of mandamus, but unreasonable delay is a ground for dismissing such a petition. Ex parte Johnson, 485 So.2d 1098 (Ala.1986). Here, the employees state that their initial counsel resigned from the Alabama Attorney General's Office in December 1998 and that their present counsel did not become the lead attorney in the case until March 1, 1999. They contend that their present counsel filed the petition as soon as he could become familiar with their case. Under those circumstances, we do not consider the delay in filing the petition so unreasonable as to justify dismissing the petition.

II.

We next address Martin's argument that the trial court should have dismissed the claims made against him in his official capacity, just as it dismissed the claims made against all the other employees in their official capacities. He clearly is correct. A complaint seeking money damages against a State employee in his or her official capacity is considered a complaint against the State, and such a complaint is barred by Art. I, § 14, Alabama Constitution of 1901. Ex parte Alabama Dep't of Forensic Sciences, 709 So.2d at 457. The wording of the trial court's order suggests that the omission of Martin's name from that portion of the order dismissing the claims against the other employees in their official capacities may have been merely an oversight. In any event, Martin is entitled to a writ of mandamus directing the trial court to enter an order dismissing the claims against him in his official capacity.

III.

We now consider the families' claims made against the employees in their individual capacities. We emphasize that this mandamus petition asks for a writ directing the circuit judge to dismiss claims against the defendants, not to enter a judgment for them on the merits. As a general rule, a motion to dismiss "`for...