Opinion
No. 1041205.
Decided November 10, 2005.
Appeal from Cullman Circuit Court (CV-04-306), Harry F. Brunner, Jr., Judge.
Beverly Paschal Poston and William D. Sulzby, Jr., Cullman, for Appellant.
Robert M. Girardeau and Michelle K. Pieroni of Huie, Fernambucq Stewart, LLP, Birmingham, for Appellees.
Amici curiae Association of County Commissions of Alabama and the Alabama League of Municipalities, in support of the appelle's application for rehearing: Kendrick E. Webb and Bart Harmon of Webb Eley, P.C., Montgomery, for the Association of County Commissions of Alabama; and Lori Lein, Staff Atty., Montgomery, for the Alabama League of Municipalities.
J.M. "Mike" Hillman appeals from an order entered by the Cullman Circuit Court granting a motion to dismiss filed by Stanley Yarbrough and the Cullman County Commission, the defendants in the action below (hereinafter jointly referred to as "the Yarbrough defendants"). We reverse and remand.
Facts and Procedural History
The underlying operative facts, derived solely from Hillman's complaint for the reason hereinafter explained, are as follows: On November 25, 2003, two members of the Cullman County Commission ("the Commission"), Yarbrough and Wiley Kitchens, attended a meeting of the Cullman County Parks and Recreation Board ("the Board"). At one point, Yarbrough asked the Board to consider removing Hillman from his position as consulting engineer on a project being undertaken by the Board to renovate the Clarkston Covered Bridge. Yarbrough stated:
"We are having trouble with [Hillman]. . . . We understand he has already spent half the money [earmarked for the renovation]. There has been tremendous trouble working with him. We need more input from him, and we need signs of work being done."
Yarbrough additionally requested the Board to "make [Hillman] more aggressive or dismiss him. We are getting complaints from the state because he is not filing his paperwork." It is unclear from the record why Yarbrough and Wiley attended the meeting of the Board and in what capacity. The comments Yarbrough made at the meeting were quoted in an article appearing in the Cullman Times, a local newspaper.
Hillman sued Yarbrough, the Commission, the Cullman Times, and Community Newspaper Holdings, Inc. (the latter two defendants are hereinafter referred to as "the newspaper defendants"). Hillman alleged, among other things, that he had been defamed by Yarbrough, acting both individually and as an agent of the Commission.
The Yarbrough defendants subsequently filed a motion to dismiss Hillman's complaint as to them, attaching as an exhibit a copy of the relevant newspaper article. The Yarbrough defendants contended that the statements made by Yarbrough and quoted in the article were "subject to an absolute legislative privilege," and that, thus, the complaint failed to state a claim upon which relief could be granted and was due to be dismissed pursuant to Rule 12(b)(6), Ala. R. Civ. P. Hillman later amended his complaint; to this amended version he attached a copy of the newspaper article as an exhibit, expressing no disagreement with the factual content of the article. The Yarbrough defendants subsequently renewed their motion to dismiss the complaint on the same basis they had alleged in their initial motion.
Hillman's amendment did not materially alter the relevant allegations of his original complaint.
The trial court heard oral arguments on the motion to dismiss, and on September 21, 2004, granted the motion, stating that "this Court is of the opinion that the [Yarbrough defendants] are due to be dismissed as the communications by [Yarbrough] were made in the performance of his duties as county commissioner and are subject to immunity due to legislative privilege."
Hillman subsequently filed with the trial court a document he styled as a "motion to vacate judgment." In that motion, Hillman three times referred to the trial court's September 21 order as a "judgment." Shortly thereafter, on November 15, 2004, the trial court made the following entry on the case-action summary sheet:
"ORDERED, this matter comes before the Court on [Hillman's] Motion to Vacate Judgment. After hearing oral arguments, this Court does hereby deny same. The Summary Judgment previously entered remains in full force and effect in favor of [d]efendant[s]. If [Hillman] desires, they [sic?] may request the court certify same as a final and appealable judgment under the Alabama Rules of Civil Procedure by written motion."
(Emphasis added.)
Nearly five months later, the Yarbrough defendants filed a "motion for final judgment under Rule 54(b)," contending that because six months had passed since the entry of the order dismissing them as defendants, "there would seem to be an adequate basis to establish the finality of an order favoring dismissal of these defendants." Therefore, the Yarbrough defendants requested that the court certify its September 21 order as a final judgment under Rule 54(b), Ala. R. Civ. P.
The trial court granted this motion on April 4, 2005, making "an express determination that there is no just reason for delay and expressly direct[ing] the entry of a final judgment as to [the Yarbrough defendants]." Hillman then filed a motion to set aside the trial court's judgment, which the court denied. Hillman appeals.
On appeal, Hillman raises three grounds that he contends warrant reversal of the trial court's decision to dismiss the Yarbrough defendants. First, he argues that the court's certification of its order as a final judgment was improper because, he says, a just reason for delay does in fact exist. Next, he asserts that the Yarbrough defendants were not entitled to assert a legislative privilege as to Yarbrough's comments to the Board. Finally, he attacks the trial court's treatment of the Yarbrough defendants' motion to dismiss as one for a summary judgment. Before we can apply the appropriate standard of review, we must determine the threshold issue: whether the trial court ordered the dismissal of the Yarbrough defendants or entered a summary judgment in their favor.
Hillman argues that the trial court improperly treated the Yarbrough defendants' motion to dismiss as a motion for a summary judgment. Indeed, the trial court's November 15 entry on the case-action summary sheet, referring to its September 21 order, states that the "Summary Judgment previously entered remain[ed] in full force and effect." (Emphasis added.) However, the motions and responsive papers viewed as a whole do not support the notion that the court's September 21 order was intended to be a summary judgment. This Court will not elevate form over substance in determining the nature of a motion. Swain v. Terry, 454 So.2d 948 (Ala. 1984); Low v. State ex rel. Waltman, 602 So.2d 435 (Ala.Civ.App. 1992). The September 21 order simply granted the Yarbrough defendants' motion to dismiss; it did not purport to enter a summary judgment. Although the November 15 order referenced a previously entered "summary judgment," the court's next opportunity to refer to the September 21 action was an order directing the entry of a final judgment, and here the court referred to its September 21 order as "[t]his Court's earlier Order." (Emphasis added.) It appears that the court's reference to a "summary judgment" in the November 15 entry on the case-action summary sheet was simply inadvertent — perhaps caused by Hillman's reference to a "judgment" in his motion to vacate — which that court duly corrected in its subsequent rulings.
Although we conclude that the trial court did not enter a summary judgment on September 21, or even on November 15, that court eventually entered a final judgment on April 4, 2005. The court's order on that date stated that it was making final its earlier "order dismissing the [Yarbrough] defendants." It further made the required express determination that there was no just reason for delay and the express direction of the entry of a judgment.
Therefore, we recognize the court's September 21 order as one granting the motion to dismiss. The later incidental mischaracterization of this order as a summary judgment did not retroactively alter the nature of the initial order.
After the Yarbrough defendants presented in their brief to this Court an argument similar to this analysis and concluded that the trial court had not actually treated the motion to dismiss as one for a summary judgment, Hillman stated in his reply brief, "In view of the [Yarbrough defendants'] concession that the Trail [sic] Court Order was made on a Motion to Dismiss and is not a Summary Judgment Order[, Hillman] refrains from further addressing this issue." We do not, however, read this as saying that Hillman has abandoned this argument, as advanced in his primary brief, and we thus address the merits of this argument.
Standard of Review
An order granting a motion to dismiss is not entitled to a presumption of correctness. Jones v. Lee County Comm'n, 394 So.2d 928, 930 (Ala. 1981). In reviewing such an order, we must take the allegations of the complaint "most strongly in favor of the pleader" and determine whether the plaintiff could prove any set of facts that would entitle him or her to relief. Feore v. Feore, 627 So.2d 411, 413 (Ala.Civ.App. 1993); Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.Civ.App. 1985). We are not concerned with whether the plaintiff will ultimately prevail on the merits, but only whether the plaintiff may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala. 1985).
Analysis A. Was There "No Just Reason for Delay"?
Hillman's next argument is that although the trial court properly phrased its order certifying the September 21, 2004, order as a final judgment under Rule 54(b), Ala. R. Civ. P., the court erred in determining that there was, in fact, no just reason for delay. We disagree.
Hillman argues that there were two just reasons for delay. First, he contends, the claims against the newspaper defendants were "so closely related to and intertwined with claims against [the Yarbrough defendants] that information developed through discovery could reveal facts that indicate [the Yarbrough defendants'] liability." (Hillman's brief, at 16.) Second, Hillman asserts that "there was no proof [that] Yarbrough was performing a legislative duty or a legislative function" at the time he made the statements quoted in the Cullman Times. Id.
As for Hillman's first argument, this Court has not hesitated to dismiss an appeal or to set aside a Rule 54(b) certification when it appeared that the trial court had erred in certifying a judgment as final because a just reason for delay in fact existed. See, e.g., Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88 (Ala. 2002), and Branch v. SouthTrust Bank of Dothan, 514 So.2d 1373 (Ala. 1987); see also Winecoff v. Compass Bank, 854 So.2d 611 (Ala.Civ.App. 2003), and H.P.H. Props., Inc. v. Cahaba Lumber Millwork, Inc., 811 So.2d 554 (Ala.Civ.App. 2001). Hillman correctly notes that we have set aside a certification of finality in prior cases specifically because a dismissed claim and a remaining claim were "so closely intertwined" that there existed an unreasonable risk of inconsistent results should the disposition of the one become final before the other was resolved. Here the inconsistent result Hillman envisions would be the dismissal of the Yarbrough defendants despite Yarbrough's allegedly defamatory comments while finding the newspaper defendants liable for subsequently printing those comments.
The specific basis of the trial court's holding dismissing the Yarbrough defendants was that they were entitled to the protection of absolute legislative privilege for Yarbrough's comments. If that decision was correct, then whether Yarbrough's comments were defamatory is irrelevant to the Yarbrough defendants' liability. It would thus be permissibly conceivable, and not legally inconsistent, to find the newspaper defendants liable for printing the allegedly defamatory comments without finding the Yarbrough defendants liable.
Hillman's second argument concerning the prematurity of the trial court's certification of finality is that there exists no proof that Yarbrough was performing a legislative duty or a legislative function so as to invoke absolute legislative privilege. Although there may presently be absent from the complaint factual averments that would support the Yarbrough defendants' privilege argument, that is a matter to be determined in Part B., infra. Even if that were the case, moreover, this Court would be obliged to reverse the judgment of the trial court, not because it certified the judgment as final, but because it erred in its determination that Yarbrough's comments were privileged.
We therefore conclude that the trial court did not err in certifying the judgment as final.
B. Do the Allegations of the Complaint Establish Absolute Legislative Privilege for the Yarbrough Defendants?
Hillman's final argument on appeal is that Yarbrough's comments were not shown to be absolutely privileged. For the reasons set forth below, we agree.
The Alabama Constitution of 1901, § 56, affords absolute legislative immunity to members of the legislature, providing that "for any speech or debate in either house [the legislators] shall not be questioned in any other place." At least as early as 1967, this Court recognized the availability of an absolute privilege for communications "made in the course of legislative or judicial proceedings, and acts of state made under authority of law." Tonsmeire v. Tonsmeire, 281 Ala. 102, 106, 199 So.2d 645, 648 (1967). In 2003, in Butler v. Town of Argo, 871 So.2d 1 (Ala. 2003), this Court noted that "[t]his privilege has been extended to members of local legislative bodies," quoting § 590 of the Restatement (Second) of Torts, which provides that "`[a] member of the Congress of the United States or of a State or local legislative body is absolutely privileged to publish defamatory matter concerning another in the performance of his legislative functions.'" 871 So.2d at 24 (emphasis added).
"`"To make the defense of absolute privilege available, the communication must be made on a privileged occasion; the circumstances under which the defamatory language is used are the occasion, and it is the occasion that is privileged."'" Butler, 871 So.2d at 23 (quoting O'Barr v. Feist, 292 Ala. 440, 445, 296 So.2d 152, 156 (1974), quoting in turn 50 Am. Jur.2d Libel and Slander § 193, p. 696). "Thus, members of local legislative bodies . . . are absolutely privileged to publish matters concerning others if the publication is made during the performance of the members' legislative duties. . . . The privilege, however, does not extend to public discussion outside of a legislative function. . . ." 871 So.2d at 24.
The fact that an action is undertaken in the course of a legislator's fulfilling his or her responsibilities does not necessarily indicate that the action was taken in the performance of a legislative duty or act. In United States v. Brewster, 408 U.S. 501 (1972), the Supreme Court was confronted with a question concerning the "Speech or Debate" Clause, U.S. Const., art. I, § 6, which provides, in pertinent part: "[F]or any speech or debate in either house, [senators and representatives] shall not be questioned in any other place." The Court observed the state of the law (interpreting the federal constitutional provision) to be that a member of the Congress was immune from suit if the basis of the prosecution was a legislative act or the motivation for a legislative act. In thus defining what constituted a legislative act, the Court stated:
"A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause [U.S. Const., art. I, § 6] prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts.
"It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate `errands' performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called `news letters' to constituents, news releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years. . . . Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the Court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded the protection as reaching only those things `generally done in a session of the House by one of its members in relation to the business before it,' Kilbourn v. Thompson, [ 103 U.S. 168, 204 (1881)], or things `said or done by him, as a representative, in the exercise of the functions of that office.' Coffin v. Coffin, 4 Mass. 1, 27 (1808)."
408 U.S. at 512 — 13. The appellee in Brewster argued that a broader test should be applied in determining what constituted a legislative act and that members of the Congress should be immune from scrutiny for "all conduct `related to the due functioning of the legislative process.'" 408 U.S. at 513. The Supreme Court rejected that argument, stating that it "would not think it sound or wise . . . to extend the privilege beyond its intended scope, its literal language, and its history, to include all things in any way related to the legislative process." 408 U.S. at 516. Although the Supreme Court liberally construed the Speech or Debate Clause, it ruled that legislative acts were only those acts done within the walls of the House or the Senate or, for instance, "`sitting in committee, executing the commission of the house.'" 408 U.S. at 515 (quoting Coffin v. Coffin, 4 Mass. 1, 28 (1808)).
Beyond citations to Butler, neither Hillman nor the Yarbrough defendants discuss any applicable precedent governing absolute legislative privilege or determining what constitutes either a "legislative duty" or a "legislative function." Because the federal and Alabama versions of the "Speech or Debate" Clause are virtually identical, however, and because Alabama has never definitively interpreted these terms (in § 56 of the Alabama Constitution or elsewhere), we believe that the United States Supreme Court's interpretation of the protection afforded members of the Congress by the United States Constitution is persuasive authority as to the proper scope of that protection. The Supreme Court has definitively limited the application of the protection to events transpiring on the floor of the House or the Senate or in committee hearings. Therefore, we hold that the "legislative function" or "legislative duties" protected by Butler do not extend to all manner of events at which a local legislator is present. Rather, the legislative function of a county commissioner such as Yarbrough is limited to attending officially conducted meetings and hearings of the Commission or its committees and casting votes at those meetings. Meetings not controlled in any way by the Commission do not fall within the scope of a legislative function protected by absolute legislative immunity.
Hillman asserts that he can present evidence indicating that Yarbrough was not performing "legislative duties" in addressing the Board. In making this argument, Hillman partially relies upon an affidavit submitted in conjunction with his "motion to vacate judgment," filed after the court's ruling on the Yarbrough defendants' motion to dismiss was entered. There is no indication whether the trial court considered this evidence, because it denied Hillman's motion to vacate without explanation. The court was free to disregard the evidence presented in the affidavit. In cases in which a party files a motion to alter, amend, or vacate a summary judgment, we have consistently held that "`"`[t]he trial court can consider only that material before it at the time of submission of the motion' [such as to dismiss or for summary judgment] and . . . any material filed thereafter `comes too late.'"'" Ex parte Organized Cmty. Action Program, Inc., 852 So.2d 92, 95 (Ala. 2002) (quoting Bean v. State Farm Fire Cas. Co., 591 So.2d 17, 20 (Ala. 1991), quoting in turn other cases). We see no distinction between a motion that comes on the heels of a ruling on a motion to dismiss as opposed to ruling on a motion for a summary judgment. Therefore we need not consider the evidence presented in the affidavit attached to Hillman's motion to vacate.
Our standard of review obliges us to reverse an order dismissing a defendant if the plaintiff could possibly prove any set of facts that would allow recovery. Fontenot, supra; Feore, supra. It appears that Hillman could conceivably prove a set of facts indicating that Yarbrough's presence at the meeting of the Board was not a legislative function but rather a "public discussion outside of a legislative function." Butler, 871 So.2d at 24. Because we conclude Hillman could prove such a set of facts, we reverse the trial court's judgment granting the Yarbrough defendants' motion to dismiss and remand the cause for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Nabers, C.J., and See, Lyons, Woodall, Stuart, Smith, Bolin, and Parker, JJ., concur.