Fred v. v. Miss Emma's Day Care Home, 1050749 (Ala. 12-8-2006)

959 So. 2d 51 (2006)

Ex parte Rosemary TRAWICK.
(In re Fred V. and Rhonda V., as parents and next friends of J.V. and R.V., minors
v.
Miss Emma's Day Care Home et al.).

1050749.

Supreme Court of Alabama.

August 4, 2006. Opinion Overruling Rehearing December 8, 2006.

Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., and Sharon E. Ficquette and James E. Long, asst. attys. gen., Department of Human Resources, for petitioner.

Troy King, atty. gen., and Kevin C. Newsom and James E. Long, deputy attys. gen., and Sharon E. Ficquette, asst. atty. gen., Department of Human Resources, for petitioner, on rehearing.

Rickman E. Williams III of Pitts, Pitts & Williams, Selma, for respondents.

HARWOOD, Justice.

Rosemary Trawick, an employee of the Dallas County Department of Human Resources ("DHR"), a designated agent of the Alabama Department of Human Resources ("ALDHR"), petitions for a writ of mandamus directing the Dallas Circuit Court to vacate its order denying her motion for a summary judgment based on State-agent immunity and to grant that motion. We grant the petition in part, deny the petition in part, and issue the writ.

Facts and Procedural History

At all times pertinent to this appeal, Trawick was a social worker employed by DHR. Trawick's employment with DHR largely consisted of functions relating to the licensing of child day-care and night-time-care centers.

In late 1999, James Anderson and Emma Anderson applied for a license to operate a family day-care facility for children. Trawick was assigned the task of performing the investigation necessary to determine the Andersons' eligibility for such a license and to award them the requested license, if appropriate. On January 1, 2000, DHR issued to the Andersons the requested license. The Andersons then commenced operation of Miss Emma's Day Care Home ("Miss Emma's"). Miss Emma's license was renewed in 2002.

At some point before June 2000, Fred V. and Rhonda V. began gathering information on day-care centers, including Miss Emma's. During this period, Rhonda contacted both the Selma Police Department and DHR in an attempt to determine whether any complaints had been filed or allegations leveled against Miss Emma's. When Rhonda contacted DHR, she spoke with Trawick.^[1] Rhonda asked Trawick whether Miss Emma's was a licensed facility and whether anyone had complained to DHR about any employees of Miss Emma's. Trawick responded that Miss Emma's was a licensed facility; she additionally stated that no one had filed any complaint against Miss Emma's and that no employees of Miss Emma's had ever been accused of anything improper. In fact, Trawick stated that the employees at Miss Emma's were "great people" and "never [had] been accused of anything." In reliance upon Trawick's representation, Fred and Rhonda enrolled their two children in Miss Emma's.

Fred and Rhonda allege that, in contradiction to Trawick's representation, Trawick knew of a complaint that had been filed against James Anderson. Specifically, Fred and Rhonda allege that before Rhonda's telephone inquiry, Mary B., the grandmother of a child enrolled at Miss Emma's, had filed a complaint with DHR accusing James Anderson of having molested her granddaughter. Fred and Rhonda learned this information in 2002, after James Anderson was arrested and charged with not only sexually abusing one of their children, but also with sexually abusing Mary B.'s granddaughter.

On December 31, 2003, Fred and Rhonda sued numerous parties, including Trawick in both her individual and official capacities. Their complaint alleged, among other things, that Trawick negligently and/or wantonly failed to advise or warn them about the complaint alleging that James Anderson had sexually abused a child enrolled at Miss Emma's, that Trawick failed to maintain a complaint file and/or a report of the alleged abuse, that Trawick failed to properly investigate the employees of Miss Emma's, and that Trawick had negligently licensed and/or renewed the license for Miss Emma's.

Trawick filed a motion for a summary judgment, arguing that she was immune from suit under the doctrine of State-agent immunity. The trial court denied Trawick's motion on February 2, 2006. Trawick has timely petitioned this Court for a writ of mandamus. Trawick has failed to include among the attachments to her petition the summary-judgment motion she filed with the trial court. The Alabama Rules of Appellate Procedure require the attachment of "parts of the record that would be essential to an understanding of the matters set forth in the petition." Rule 21(a)(1)(E), Ala. R.App. P. From the answer and briefs filed with this Court, however, it is clear that Trawick has preserved for our review her immunity argument. Because of the clarity of the issue before us, we do not consider Trawick's omission from her petition of a copy of her summary-judgment motion to be fatal to her petition.

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 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).

"This Court has established a `burden-shifting' process when a party raises the defense of State-agent immunity. Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala.2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity. Giambrone, 874 So.2d at 1052; Ex parte Wood, 852 So. 2d 705, 709 (Ala.2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052; Wood, 852 So.2d at 709; Ex parte Davis, 721 So. 2d 685, 689 (Ala.1998). `A State agent acts beyond authority and is therefore not immune when he or she "fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist."' Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000))."

Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala.2006).

Analysis

Trawick argues that she was immune from suit in both her official and individual capacities. The complaint alleges that Trawick is liable "individually and as an employee of Dallas County Department of Human Resources" (emphasis added), and proceeds to demand monetary compensation. With respect to the claims against Trawick in her official capacity, she is clearly correct. As we made clear in Ex parte Butts, 775 So. 2d 173, 177 (Ala.2000), "[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 [455,] 457 [(Ala.1997)]." Moreover, "a county department of human resources is considered to be a State agency for purposes of asserting the defense of sovereign immunity." Ex parte Franklin County Dep't of Human Res., 674 So. 2d 1277, 1279 (Ala. 1996) (citing Mitchell v. Davis, 598 So. 2d 801, 806 (Ala.1992)). Thus, to the extent the trial court denied Trawick's summary-judgment motion as it pertained to her liability in her official capacity, we grant Trawick's petition and issue a writ of mandamus directing the trial court to vacate its order and enter a summary judgment for Trawick on the claims asserted against her in her official capacity.

We next examine Trawick's argument that she is entitled to immunity in her individual capacity because her alleged conduct fits within one of the categories of conduct protected under Ex parte Cranman, 792 So. 2d 392 (Ala.2000),^[2] in which this Court explained, in pertinent part:

"A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's

". . . .

"(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner. . . . "

792 So.2d at 405.

In her motion for a summary judgment, Trawick bore the burden of presenting the trial court with evidence indicating that her actions, and, if relevant, the manner in which she undertook those actions, represented a discharge of duties of the type included in Cranman category (3). If Trawick demonstrated that to be the case, she met her burden, and the burden then shifted to Fred and Rhonda to present substantial evidence indicating that there were circumstances, of the type also described in Cranman, which served to preclude such immunity.

In her petition, Trawick attempts to demonstrate that each aspect of her "conduct made the basis of the claim" was undertaken in fulfillment of a duty imposed by law. She first notes the allegation that she failed to properly license, investigate, and monitor Miss Emma's. Although Trawick acknowledges that this is one of the claims in the complaint and proceeds to offer a thorough history of exactly what she did in that connection, at no point does she actually argue that she was required by law to engage in or to refrain from certain actions. To the extent the trial court denied Trawick's summary-judgment motion with respect to this allegation, we cannot hold that the trial court erred.

At no point in her petition does Trawick even acknowledge the allegation that she failed to maintain a complaint file and/or a report of the alleged abuse by James Anderson of Mary B.'s granddaughter. It goes without saying that she does not defend her conduct in that regard as having been required by law. Again, then, we cannot hold that the trial court erred in denying Trawick's summary-judgment motion as to this allegation.

Trawick does raise, and devotes the overwhelming majority of her brief to, the claim that she negligently or wantonly failed to advise or warn Rhonda about any complaints accusing James Anderson of sexual abuse of a child enrolled at Miss Emma's. The conduct alleged to form the basis for this claim is that when Trawick received Rhonda's telephone call asking whether any complaints had been filed against Miss Emma's, Trawick told Rhonda that there were no complaints against Miss Emma's at that time, despite the fact that a complaint indeed had been filed against Miss Emma's. In her petition, Trawick argues only that she is entitled to State-agent immunity under category (3) of the Cranman test.

The central focus of the dispute between the parties concerns Ala.Code 1975, § 26-14-8. That statute provides a list of entities to which child-abuse-and-neglect records may be made available. Section 26-14-8 provides, in pertinent part:

"(c) The Department of Human Resources shall establish and enforce reasonable rules and regulations governing the custody, use and preservation of the reports and records of child abuse and neglect. Child abuse and neglect reports and records shall be limited to the purposes for which they are furnished and by the provisions of law under which they may be furnished. The reports and records of child abuse and neglect and related information or testimony shall be confidential, and shall not be used or disclosed for any purposes other than:

"(1) To permit their use to prevent or to discover abuse or neglect of children through the information contained therein. . . . "

Trawick argues that this statute imposed on her a duty to keep confidential any information regarding the complaint made against James Anderson. Fred and Rhonda assert, however, that in Trawick's summary-judgment motion — which, as noted above, has not been included by either party in attachments reviewable by this Court — she conceded that under the statute she was "permitted" to release the information because her disclosure to Rhonda could potentially "prevent . . . abuse or neglect of children." Regardless of whether Trawick did so in her summary-judgment motion, she has clearly conceded in her reply brief to this Court that § 26-14-8(c)(1) is "clearly permissive." (Trawick's reply brief, at 10.)

Trawick's burden under Cranman is to make a prima facie showing that her actions were dictated by a duty imposed by statute, rule, or regulation. By conceding that she was "permitted" to disclose this information under the circumstances of this case, however, Trawick has conceded that under § 26-14-8 she was under no "duty" to keep confidential the information regarding the complaint against James Anderson.

Trawick also argues that Ala.Code 1975, § 38-7-13, requires that "[r]ecords regarding children and facts learned about children and their relatives shall be kept confidential by the child-care facility and by the department." The basis of Fred and Rhonda's claims, however, is not that Trawick refused to reveal information about a child or his family; rather, she is faulted for allegedly misrepresenting the safety of a child-care facility. This statute, then, imposed no duty to which Trawick was adhering in making her alleged representations to Rhonda.

Section 38-7-13 does, however, along with § 26-14-8, authorize ALDHR to promulgate rules and regulations governing the use and disclosure of certain information related to children and the child-care facilities they attend. Pursuant to that authority, ALDHR has implemented rules governing confidential materials. See Ala. Admin. Code (Department of Human Resources), Regulation 660-1-6. Trawick argues that Regulation 660-1-6-.07(7) "restrict[s] publicly available information on complaints against child care facilities to `founded' or `indicated' complaint determinations." (Petition, at 14.) That regulation provides, in pertinent part:

"Upon the request of any adult, non-confidential information, including . . . founded/indicated complaints of violations of the Code of Ala.1975, Title 38, Chapter 7, Minimum Standards, or Administrative Rules of this Department by individual . . . non-exempt child care facilities . . . located in a particular . . . county may be disclosed or released. Except for official determinations relating to character and suitability to be involved in child care, information relating to the character and good name of any particular unlicensed or non-exempt person, group of persons, agency, association, or organization shall not be disclosed or released. Child abuse or neglect complaints and records shall not be disclosed or released except as provided for in Rule 660-1-6-.05. Names and facts learned about children and their families shall remain confidential. . . . Founded/indicated child care license complaint information includes only:

"(a) Child Care Minimum Standards violat[ions] actually observed by the licensing consultant or other DHR personnel;

"(b) Child Care Minimum Standards violations admitted to by facility personnel;

"(c) Child Care Minimum Standards violations determined by an administrative or court decision."

Trawick's argument misapprehends the regulation. Although the regulation does allow the disclosure of "founded" and "indicated" complaint information, it does not authorize this disclosure as an exception to a general rule of confidentiality. Rather, the regulation avoids defining information as confidential or nonconfidential, stating only that certain nonconfidential information may be disclosed. Thus the regulation cited by Trawick fails to support her argument that she was prohibited from releasing information about James Anderson to Rhonda.

Finally, Trawick cites in support of her argument Ala. Admin. Code (Department of Human Resources), Regulation 660-1-6-.05, which governs child-abuse-and-neglect records. That regulation provides, in pertinent part:

"Child Abuse and Neglect (CA/N) records and other confidential information shall be disclosed and released without a subpoena to:

"(a) persons in a position to help or assist in the prevention or discovery of abuse or neglect of children through the information contained therein. . . . "

The regulation continues with a list of eight additional categories of entities to which child-abuse-and-neglect records may be disclosed. Although Trawick correctly notes that "the list does not include parents seeking information on a DHR-licensed child care facility," that list does include "persons in a position to help or assist in the prevention . . . of abuse or neglect of children." Given Trawick's earlier concession that she was permitted to release information "to prevent . . . abuse . . . of children," she can hardly argue that she was prohibited from releasing that information to "persons in a position" to do just that.

Because Trawick has failed to cite to this Court any statute, rule, or regulation that she contends imposes upon her a duty to keep confidential any information she may have learned about James Anderson's improprieties with children at Miss Emma's, she has necessarily failed to meet her initial burden of demonstrating that her conduct falls within a category of conduct that is protected under Cranman.

Moreover, although Trawick's argument presupposes that she could withhold with impunity information concerning the complaint lodged against James Anderson, that is not the scenario presented by the materials accompanying the parties' submissions to this Court. Rather, we must accept as true for purposes of this review that Trawick undertook to disclose to Rhonda the presence or absence of child-abuse-and-neglect reports relating to Miss Emma's and incorrectly advised her that no such reports were of record or known to Trawick. Thus, Trawick voluntarily bypassed any confidentiality of records and information she might otherwise have been entitled to maintain. We therefore conclude that Trawick has failed to demonstrate a clear legal right for which a writ of mandamus should issue, and we deny the petition as to the issue of Trawick's claim of State-agent immunity for actions taken in her individual capacity.

Trawick finally argues that Fred and Rhonda's claims are barred by the statute of limitations. In their answer, however, Fred and Rhonda note that "this argument was not made by [Trawick] to the trial court and is therefore not properly before this appellate court." (Answer, at 16.) Trawick tacitly admits as much, responding to that assertion in her reply brief only by saying that she "did raise the statute of limitations in her Mandamus Petition." (Emphasis added.) (Trawick's reply brief, at 16.) Because it is undisputed that Trawick failed to raise this argument in her summary-judgment motion, we cannot hold, on the basis of the statute of limitations, that the trial court erred by denying that motion.

Conclusion

We grant the petition for the writ of mandamus with respect to Trawick's claim of State-agent immunity in her official capacity. We deny the petition with respect to Trawick's claim of State-agent immunity in her individual capacity and to her statute-of-limitations argument.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

NABERS, C.J., and LYONS, WOODALL, STUART, BOLIN, and PARKER, JJ., concur.

SEE and SMITH, JJ., concur in the rationale in part and concur in the result.

SEE, Justice (concurring in the rationale in part and concurring in the result).

I concur in the main opinion as to its resolution of all of the issues except one, as to which I concur only in the result.

Trawick argues that in her individual capacity she is entitled to immunity from Fred and Rhonda's claim that she negligently and wantonly failed to warn Rhonda about the complaints of James Anderson's alleged child abuse. Ex parte Cranman, 792 So. 2d 392, 405 (Ala.2000), provides immunity to a State agent when "the conduct made the basis of the claim against the agent" is based upon her "discharging duties imposed . . . by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner. . . ." Trawick claims that she is immune from Fred and Rhonda's failure-to-warn claim because, she says, she was legally obligated to keep the complaints against James Anderson confidential.

Fred and Rhonda do not complain, however, that Trawick kept information confidential. Instead, they complain that she actively misrepresented facts to Rhonda. Trawick does not point to any statute, rule, or regulation that would impose upon her a duty to misrepresent facts to someone such as Rhonda. As the main opinion states, Trawick stated to Rhonda that the employees at Miss Emma's were "great people" and "never [had] been accused of anything," when, in fact, a child-abuse complaint had been filed against James Anderson. Because Trawick cites no statute, rule, or regulation that put her under an obligation to misrepresent facts to Rhonda, the Cranman provision upon which Trawick relies does not immunize her from suit. Because I differ in the rationale upon which I reach the conclusion that Trawick is not entitled to immunity in her individual capacity under Cranman category (3), I concur only in the result as to this issue; in all other regards, I concur.

SMITH, J., concurs.

On Application for Rehearing

HARWOOD, Justice.

In her application for rehearing with respect to our August 4, 2006, opinion denying her petition for the writ of mandamus, Rosemary Trawick, a social worker for the Dallas County Department of Human Resources ("DHR"), argues that our decision "will have disastrous and wide-ranging effects on the State government's ability to provide essential protective social services" and that "if [DHR] workers cannot make discretionary or professional decisions within the authority granted by the statute and be covered by State-agent immunity, there will be no one to do the work." In her rehearing application, she also attempts to present new arguments under the guise that those arguments were in fact made on original submission or that they should be recognized as "jurisdictional," and she moves to "supplement the record" so that she can "file additional evidentiary materials."

Because of Trawick's apparent misapprehension about what our August 4, 2006, opinion actually held, resulting in her dire predictions of calamitous results for the State in its ability to provide protective social services, we respond to her application for rehearing for the purpose of putting things in proper perspective. In doing so, we emphasize that our opinion simply responded (1) to the facts put before us by virtue of the parts of the record selectively presented by the parties, and (2) to the legal arguments Trawick chose to make based on those facts.

Trawick was sued in her individual and official capacities; the complaint alleged, among other things, that Trawick had failed to inform the plaintiffs, Fred V. and Rhonda V., suing as parents and next friends of J.V. and R.V., minors, that a complaint had been made accusing James Anderson, a co-owner with his wife, Emma, of Miss Emma's Day Care Home, of sexual abuse. The trial court denied Trawick's motion for a summary judgment, and she filed a petition for a writ of mandamus in this Court, which we granted as to her claim of State-agent immunity in her official capacity but denied with respect to her claim of State-agent immunity in her individual capacity and with respect to her argument regarding the statute of limitations.

The thrust of Trawick's argument in her petition for the writ of mandamus was that she is entitled to State-agent immunity under immunity category (3) of Ex parte Cranman, 792 So. 2d 392 (Ala.2000), which affords immunity to a State agent "discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner. . . ." 792 So.2d at 405. In her application for rehearing Trawick states that we mistook her argument on original submission and that it was her position that she was under a legal duty to keep confidential the sexual-abuse information because the prior complaint against James Anderson had been resolved as "not indicated." Therefore, she argues, "by statute disclosure was prohibited," citing a subsection of the Child Abuse and Neglect Reporting Act, Ala.Code 1975, § 26-14-8(c)(1). She faults this Court for quoting "only part" of that subsection in its opinion. In our opinion we quoted the Code section "in pertinent part" because that was the exact and only language Trawick chose to quote in her original submission to us. Specifically, Trawick first stated, in her petition, only that "DHR child abuse and neglect `reports and records and . . . related information or testimony shall be confidential and shall not be used or disclosed for any purpose' other than the ones listed in the statute. Ala. Code § 26-14-8(c)." In her reply brief she elaborated to state that

"[t]he [Child Abuse and Neglect Reporting] Act provides in part as follows:

"`The reports and records of child abuse and neglect and related information or testimony shall be confidential, and shall not be used or disclosed for any purposes other than:

"`(1) To permit their use to prevent or to discover abuse or neglect of children through the information contained therein,. . . . '

"ALA[.] CODE § 26-14-8(c)."

We quoted in our opinion that same "part" of the subsection, exactly as truncated by Trawick. She now points out that subsection § 26-14-8(c)(1) reads in its entirety to provide that reports of child abuse shall not be disclosed for purposes other than:

"(1) To permit their use to prevent or discover abuse or neglect of children through the information contained therein, except reports or records in cases determined to be `not indicated' shall not be used or disclosed for purposes of employment or other background checks; or"

(Emphasis supplied by Trawick.)

Using that additional language as a springboard for a new argument on rehearing, Trawick contends that because she stated in the affidavits submitted to the trial court in support of her summary-judgment motion that she had understood that earlier accusations of sexual abuse reported against James Anderson had been determined to be "not indicated," she was not at liberty to disclose those accusations to Rhonda V. when Rhonda V. telephoned DHR to inquire if there had ever been any complaints or allegations of abuse against the child day-care facility operated by James and Emma Anderson. In other words, Trawick argues that, based on her understanding that the charges against James Anderson had been determined by another DHR worker to be "not indicated," the reports of those charges could not be disclosed for purposes of "a background check." Therefore, Trawick goes on to now argue, she was under a mandatory statutory duty not to disclose the fact that a report of sexual abuse had been made against James Anderson and was thus discharging her statutory duty when she did not disclose the sexual-abuse report against James Anderson to Rhonda V. As noted, however, in her petition for the writ of mandamus Trawick never quoted, or in any way alluded to, the concluding part of § 26-14-8(c)(1) on which she now relies; never argued that any part of subsection (c)(1) imposed on her a mandatory duty; and even now does not offer any discussion, much less citation to authority, concerning what constitutes "other background checks" for purposes of that subsection.

In fact, when Trawick offered her only discussion on original submission of the effect of § 26-14-8(c)(1), she stated categorically that "[t]he above Section is clearly permissive not mandatory." Trawick now argues that she "fell under the `non-permissive' portion of a `permissive' subsection of a statute" and that the part of our opinion that "addresse[d] the `permissive' nature of the statute, does not apply to the facts of the case or the argument made by Trawick." All we stated in our opinion on original submission was that Trawick had taken the position that the "pertinent part" of subsection § 26-14-8(c)(1) quoted in the opinion was "clearly permissive" and thus, we explained, could not impose on her a mandatory statutory duty under Cranman State-agent immunity category (3).

Trawick argues in her rehearing application, as she did in her petition, that she established that she complied with the statutory mandatory duty not to disclose any information about the sexual-abuse report lodged against James Anderson, because her affidavits submitted in support of her motion for a summary judgment explained that she could not recall having had any conversation with Rhonda V. and that, in any event, she would not have disclosed the information to Rhonda V. That, of course, flies in the face of Rhonda V.'s testimony that she spoke with Trawick over the telephone, inquired if there had been any complaints made against Miss Emma's Day Care Home, and was told that no complaints had been filed against Miss Emma's, that none of its employees had ever been accused of anything improper, and that its employees were all "great people" and had "never been accused of anything."

We took pains in our opinion to point out in footnote 1 that, given our standard of review, we were obliged to view the facts in a light most favorable to the plaintiffs and that Trawick herself acknowledged in her petition that we must view the facts in that light. Trawick now notes that Justice See and Justice Smith took "a more narrow approach to the issue," basing their special writing concurring in the rationale in part and concurring in the result on the fact that the contention by the plaintiffs was that Trawick had actively misrepresented facts to Rhonda V.; she responds, however, to that approach in her rehearing application simply by referencing the fact that in one of her affidavits filed with the trial court she "denies making any misrepresentations and states that she has never discussed complaints with [Fred V. and Rhonda V.]." Her denial in that regard is unavailing, given the controlling standard of review.

Finally, Trawick revisits the statute-of-limitations issue. We explained in our original opinion that Trawick had not included with her petition a copy of her summary-judgment motion and that Fred V. and Rhonda V. had asserted in their answer to the petition that Trawick had not asserted a statute-of-limitations defense before the trial court. We noted that Trawick had not contradicted that assertion in her reply brief, but had simply stated cryptically that she "did raise the statute of limitations in her Mandamus Petition." We therefore took it to be "undisputed" that a statute-of-limitations argument had not been raised in the summary-judgment motion and that, therefore, we could not hold that the trial court had erred on that basis in denying Trawick's summary-judgment motion. Trawick now moves to "supplement the record" so as to supply a copy of the omitted summary-judgment motion, arguing that it will show that she did include in it a statute-of-limitations argument. Of course, there is no "record on appeal" in a mandamus proceeding; it was Trawick's obligation to attach to her petition "[c]opies of any order or opinion or parts of the record that would be essential to an understanding of the matter set forth in the petition." Rule 21(a)(1)(E), Ala. R.App. P. Trawick attempts to justify her belated submission to this Court of the summary-judgment motion on the theory that the expiration of the statute of limitations in a criminal case and in a workers' compensation case creates a jurisdictional bar and that "[s]ince the issue of immunity is jurisdictional and the statute of limitations is jurisdictional in some contexts, the statute of limitations should be jurisdictional in immunity cases where the defendant is the state, a state agency, or an official or employee of the state." Laying aside the issue whether the expiration of the statute of limitations in criminal cases and workers' compensation cases actually creates a jurisdictional bar as Trawick contends, she offers no citation to authority or any analysis as to why a statute-of-limitations defense is so embedded in a State-agent-immunity defense that it should "share the jurisdictional" status of the State-agent-immunity defense. Consequently, we deny the motion to supplement the record to allow the belated submission of a part of the record available to Trawick on original submission, but which she chose to omit from the materials filed with her petition.

Moreover, Trawick ignores the fact that the complaint, which Trawick attached as an exhibit to her petition, states that "plaintiffs [J.V.] and [R.V.] are minor children who bring this lawsuit by and through their mother and father, Rhonda [V.] and Fred [V.]." Another exhibit to Trawick's petition reflects that J.V. was born September 18, 1997, and R.V. was born November 17, 1999. The attachments to the original petition also include the combined narrative summary of undisputed facts and brief that the plaintiffs filed in opposition to the summary-judgment motions of the various defendants, and the last page of the brief points out to the trial court that because J.V. and R.V. were minors, § 6-2-8, Ala.Code 1975, suspends the statute of limitations, allowing them a period of three years after reaching the age of majority to file a civil case. Consequently, the plaintiffs correctly argued, the claims asserted by J.V. and R.V. were not time-barred. Nonetheless, in her application for rehearing Trawick persists in her argument that because the alleged abuse of J.V. and R.V. occurred, and was discovered, more than two years before this action was filed, the action is barred by the two-year statute of limitations set forth at § 6-2-38(1), Ala.Code 1975. Suffice it to say that she has not shown a clear legal right to prevail on a statute-of-limitations defense.

Finally, Trawick requests oral argument, stating that in our opinion on original submission we misapplied or misapprehended applicable law and dispositive facts and asserting that it will have disastrous and wide-ranging effects on the State's ability to provide essential, protective, and social services to its citizens. We believe that the foregoing explanation of the limited focus of our August 4, 2006, opinion sufficiently allays Trawick's concerns of any far-reaching implications, which are not warranted by the actual import of that opinion. Consequently, we deny the request for oral argument, and we deny the application for rehearing.

ORAL ARGUMENT DENIED; APPLICATION OVERRULED.

NABERS, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

NOTES

[1] Before the trial court, Trawick denied that she was contacted by Rhonda or that she spoke to her with regard to Miss Emma's. For purposes of her petition to this Court, Trawick has accepted as true Fred and Rhonda's allegations. Even were Trawick to have contested those allegations, however, this Court's standard of review for a summary judgment, even when reviewed on a mandamus petition, is to view the facts in the light most favorable to the nonmovant. Ex parte Sawyer, 876 So. 2d 433, 439 (Ala.2003); Ex parte Rizk, 791 So. 2d 911, 912 (Ala.2000).

[2] Cranman was a plurality decision. We subsequently adopted the test set forth in Cranman by a majority vote in Ex parte Butts, supra.