Ex Parte Michael Shelley(in Re Michelle Irvin

• Decision Date: 24 November 2009
• Docket Number: 1080588 and 1080863.
• Citation: 53 So.3d 887
• Parties: Ex parte Michael SHELLEY(In re Michelle Irvin, as representative of the estate of Terry Irvin, deceasedv.Michael Shelley et al.)Ex parte Michael Shelley(In re John Ricev.Houston County et al.).
• Court: Alabama Supreme Court

53 So.3d 887

Ex parte Michael SHELLEY(In re Michelle Irvin, as representative of the estate of Terry Irvin, deceased

v.Michael Shelley et al.)Ex parte Michael Shelley(In re John Rice

v.Houston County et al.).

1080588 and 1080863.

Supreme Court of Alabama.

Sept. 18, 2009.Rehearing Applications Denied Nov. 24, 2009.

OPINION TEXT STARTS HEREWest CodenotesRecognized as UnconstitutionalCode 1975, § 14–6–1

Kendrick E. Webb, Joseph L. Hubbard, Jr., and Jamie K. Hill of Webb & Eley, P.C., Montgomery, for petitioner.James R. Pratt III and Bruce J. McKee of Hare, Wynn, Newell & Newton, LLP, Birmingham, for respondent Michelle Irvin.Kenneth J. Mendelsohn of Jemison & Mendelsohn, P.C., Montgomery, for respondent John Rice.MURDOCK, Justice.

Michael Shelley petitions this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying Shelley's motion to dismiss the negligence and wantonness claims filed against him by Michelle Irvin on behalf of Terry Irvin, who is deceased. Shelley also petitions this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its orders denying Shelley's motions to dismiss and to stay discovery concerning the negligence and wantonness claims filed against him by John Rice. In both petitions, Shelley asks this Court to direct the trial courts to enter orders granting his motions to dismiss. We deny the petitions.¹

I. Factual Background and Procedural History

For purposes of these petitions, the parties agree that the facts are not in dispute. At the time of the incident in question, Michael Shelley was a jailer at the Houston County jail, which is operated by the Houston County Sheriff's Office. Terry Irvin was a prisoner in the custody of the Houston County Sheriff's Office. On July 22, 2008, Shelley—acting in the line and scope of his duties as a jailer—was transporting Irvin from the Kilby Correctional Facility to the Houston County jail. Rice was driving west on Alabama Highway 110/Vaughn Road in Montgomery County when he reached the intersection of Highway 110 and Pike Road. Shelley was driving south on Pike Road when he reached the intersection. Both Michelle Irvin and Rice allege that Shelley ran a red light at the intersection of Pike Road and Highway 110 and, as a result, Shelley's vehicle collided with Rice's vehicle. The accident killed Terry Irvin, and Rice suffered injuries that required surgery.

On October 8, 2008, Michelle Irvin, as administrator of the estate of Terry Irvin, filed an action against Shelley and the Houston County Commission in the Montgomery Circuit Court, alleging negligence and wantonness (“the Irvin action”). Irvin sued Shelley in Shelley's individual capacity, seeking an award of money damages. The Houston County Commission filed a motion to dismiss based in part on Irvin's failure to file a notice of claim with Houston County. Shelley filed a motion to dismiss or, in the alternative, a motion for a summary judgment based on the doctrine of State immunity under Art. I, § 14, Ala. Const.1901.

The trial court dismissed the Houston County Commission as a defendant on the ground that Irvin failed to first file a notice of claim with Houston County as required by §§ 6–5–20 and 11–12–8, Ala.Code 1975. The trial court denied Shelley's motion, however, stating, in pertinent part:

“The existing Alabama caselaw holds that sheriffs, with certain exceptions, are absolutely immune, as executive officers of the state. The Alabama Supreme Court has extended this absolute sovereign immunity to deputy sheriffs, e.g., on the rationale that deputies are alter egos or legal extensions of the sheriff. Defendant Shelley's motion is denied because no Alabama case has extended this absolute immunity beyond individuals who are either sheriffs or deputy sheriffs.”

On November 24, 2008, Rice filed an action in the Montgomery Circuit Court alleging negligence and wantonness against Shelley and Houston County (“the Rice action”). As in the Irvin action, Rice sued Shelley in Shelley's individual capacity, seeking an award of money damages.

On December 23, 2008, Shelley filed a motion to dismiss or, in the alternative, a motion for a summary judgment in the Rice action based on the doctrine of State immunity under Art. I, § 14, Ala. Const.1901. ² Shelley simultaneously filed a motion to stay discovery pending resolution of the immunity issue.

On February 12, 2009, the trial court denied Shelley's motion to stay discovery without explaining its reasons for doing so. Shelley filed a motion to alter, amend, or vacate that order on February 27, 2009, arguing that allowing discovery to proceed effectively abrogated his immunity defense. The trial court likewise denied that motion without elaboration.³ On April 9, 2009, the trial court denied Shelley's motion to dismiss without further explanation and set a hearing on his motion for a summary judgment for May 5, 2009.

Shelley has petitioned this Court for writs of mandamus in both the Irvin action and the Rice action, requesting that this Court order the trial courts in those respective actions to vacate their orders denying his motions to dismiss and to grant those motions based on his assertion that he is entitled to State immunity under Art. I, § 14, Ala. Const.1901.

II. Standard of Review

“ ‘The writ of mandamus is an extraordinary legal remedy. Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358, 360 (Ala.1993). Therefore, this Court will not grant mandamus relief unless the petitioner shows: (1) a clear legal right to the order sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the Court. See Ex parte Wood, 852 So.2d 705, 708 (Ala.2002).’

“ Ex parte Davis, 930 So.2d [498,] at 499 [ (Ala.2005) ]. ‘ “[I]f an action is an action against the State within the meaning of § 14, such a case ‘presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent.’ ” ' Ex parte Davis, 930 So.2d at 499 (quoting Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004), quoting in turn Patterson v. Gladwin Corp., 835 So.2d 137, 142–43 (Ala.2002)). ‘ “Therefore, a court's failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus.” ’ Ex parte Davis, 930 So.2d at 499–500 (quoting Ex parte Alabama Dep't of Mental Health & Retardation, 837 So.2d 808, 810–11 (Ala.2002)).”

Ex parte Hale, 6 So.3d 452, 456 (Ala.2008).

III. Analysis

Article I, § 14, Const. of Ala.1901, states that “the State of Alabama shall never be made a defendant in any court of law or equity.” This constitutional provision “has been described as a ‘nearly impregnable’ and ‘almost invincible’ ‘wall’ that provides the State an unwaivable, absolute immunity from suit in any court.” Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006) (quoting Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 872 (Ala.2004); Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002); and Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala.1994)).

Article V, § 112, Ala. Const.1901, provides in part that “[t]he executive department” of the State of Alabama “shall consist of a governor ... and a sheriff for each county.” Based on §§ 14 and 112 of the Alabama Constitution, this Court concluded in Parker v. Amerson, 519 So.2d 442, 442–43 (Ala.1987), that, aside from certain recognized exceptions not applicable here,⁴ “[a] sheriff is an executive officer of the State of Alabama, who is immune from suit under Article I, § 14, Alabama Constitution of 1901, in the execution of the duties of his office....”

“We have also held that deputy sheriffs are immune from suit to the same extent as sheriffs. ‘In general, the acts of the deputy sheriff are the acts of the sheriff. The deputy sheriff is the alter ego of the sheriff.’ Carr v. City of Florence, Alabama, 916 F.2d 1521, 1526 (11th Cir.1990), quoted with approval in Drain v. Odom, 631 So.2d 971, 972 (Ala.1994), and Wright v. Bailey, 611 So.2d 300, 303 (Ala.1992). ‘[Under Alabama law, a] deputy is legally an extension of the sheriff. If the deputy's acts are generally considered the acts of the sheriff, it is logical that those acts should enjoy the same immunity covering the sheriff's own acts.’ Carr, at 1526, quoted with approval in Wright v. Bailey, at 303.”Alexander v. Hatfield, 652 So.2d 1142, 1144 (Ala.1994).

Shelley contends that because he was acting in the line and scope of his employment with the Houston County Sheriff's Office when the accident occurred, he is entitled to “State immunity” under Art. I, § 14. Among other things, he cites Ex parte Sumter County, 953 So.2d 1235, 1239 (Ala.2006),⁵ for the proposition that “ ‘[d]eputies and jailers are alter egos of the Sheriff and are state employees. Mosely v. Kennedy, 245 Ala. 448, 17 So.2d 536, 537 (1944).’ ” (Quoting plaintiff's motion for partial summary judgment.)

With respect to Shelley's reliance on Sumter County, we first note that the case of Mosely v. Kennedy, 245 Ala. 448, 17 So.2d 536 (1944), cited in Sumter County for the proposition that deputy sheriffs and jailers are alter egos of a sheriff does not state that a jailer is such an alter ego. The above-quoted passage, which this Court actually was quoting from the motion for partial summary judgment filed by the plaintiff in Sumter County, appears to reflect an inaccurate combining by that plaintiff of the positions of deputy sheriff and jailer because the deputy sheriffs sued in Sumter County were acting as jailers at the time of the incident at issue.

Moreover, in Sumter County itself, the issue of the liability of a jailer was not presented. The import of that portion of the analysis in which the Court quoted the above-quoted statement was to reject the plaintiff's argument that the County was vicariously liable for the...