Circuit Court, CV-11-900113
PETITION FOR WRIT OF MANDAMUS
City of Selma ("the City"), a defendant below,
filed a petition for a writ of mandamus requesting that this
Court direct the Dallas Circuit Court to enter a summary
judgment in its favor, based on State-agent immunity, as to
claims Gregory Pettaway filed against it. We grant the
petition and issue the writ.
and Procedural History
financed the purchase of a 2006 Nissan Armada sport-utility
vehicle. Subsequently, Santander Consumer USA, Inc.
("Santander"), took over the loan. It appears that
Santander contracted with Par North America, Inc.
("Par"), to handle repossessions for it and that
Par used Central Alabama Recovery Systems ("CARS")
to carry out the actual repossessions.
around 4:30 a.m. on November 22, 2010, two men from CARS came
to Pettaway's residence and told him that they were there
to repossess the vehicle. By the time Pettaway got dressed
and walked outside, the men had already hooked the Armada up
to the tow truck and lifted it. Pettaway objected and
telephoned the Selma Police Department; Officer Jonathan Fank
responded to the call. After Officer Fank told Pettaway that
the repossession was a civil matter and that he could not do
anything because the vehicle was already hooked up to the tow
truck, Pettaway again called the Selma Police Department to
ask that Officer Fank's supervisor come to the scene.
Willie Calhoun, a senior officer, arrived and looked at the
paper the men from CARS had, noted how far behind in payments
the paper indicated that Pettaway was, and told the men to
take the vehicle. He also told Pettaway to get any of his
personal belongings out of the vehicle before the men towed
it away, and Pettaway did.
23, 2011, Pettaway filed a complaint in the Dallas Circuit
Court against Santander, Par, CARS, and the
City. He stated conversion, negligence,
wantonness, and trespass claims. Although he stated
conversion, negligence, wantonness, and trespass claims,
Pettaway admitted that his only complaint against the City
was that the officers told the repossession men to take the
2, 2011, the City filed an answer in which it admitted that
officers were called to the scene at Pettaway's request
to keep the peace but denied the remaining allegations as to
the actions of its officers. It also raised the affirmative
defense of immunity, including "immunity pursuant to
§ 6-5-338(b), Ala. Code 1975."
28, 2011, the City filed a motion for a summary judgment. On
August 24, 2011, Pettaway filed a response and an objection
to the City's motion, but he did not present any evidence
in support of his response. On January 13, 2014, the City
filed a supplement to its motion for a summary judgment,
adding as a ground an assertion that the City was entitled to
State-agent immunity pursuant to § 6-5-338 and Ex
parte Cranman, 792 So.2d 392 (Ala. 2000). The City
supported the supplement with a brief, an affidavit from
Officer Fank, and Pettaway's deposition testimony.
Pettaway did not respond to the City's supplement.
trial court conducted a hearing on the motion for a summary
judgment. On February 20, 2017, it denied the
motion. This petition followed.
"'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 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) the
properly invoked jurisdiction of the court.' Ex parte
BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001)."
Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003). Also,
"whether review of the denial of a summary-judgment
motion is by a petition for a writ of mandamus or by
permissive appeal, the appellate court's standard of
review remains the same. If there is a genuine issue as to
any material fact on the question whether the movant is
entitled to immunity, then the moving party is not entitled
to a summary judgment. Rule 56, Ala. R. Civ. P. In
determining whether there is a material fact on the question
whether the movant is entitled to immunity, courts, both
trial and appellate, must view the record in the light most
favorable to the nonmoving party, accord the nonmoving party
all reasonable favorable inferences from the evidence, and
resolve all reasonable doubts against the ...