Ex parte City of Montgomery PETITION FOR WRIT OF MANDAMUS (In re: Jessica De' Andrea v. City of Montgomery) (Montgomery Circuit Court: CV-23-900972).

Rel: August 29, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2025

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Ex parte City of Montgomery

PETITION FOR WRIT OF MANDAMUS

(In re: Jessica De'Andrea

v.

City of Montgomery et al.)

(Montgomery Circuit Court: CV-23-900972)

McCOOL, Justice.
SC-2024-0619

The City of Montgomery ("the City") has petitioned this Court for a

writ of mandamus directing the Montgomery Circuit Court to grant the

City's motion to dismiss the claims that Jessica De'Andrea has filed

against it.

Facts and Procedural History

In July 2023, De'Andrea filed a complaint against the City and

other defendants, which she subsequently amended twice. The final

version of De'Andrea's complaint alleged the following facts:

"On March 14, 2015, [De'Andrea] was employed by the
Montgomery Police Department ('MPD') as a patrol officer. At
all times relevant and material to this complaint, [De'Andrea]
was acting within the line and scope of her employment
relationship.

"On the same date and time, as she was returning to the
police precinct in an assigned MPD patrol vehicle to complete
end-of-shift paperwork, [De'Andrea] was involved in a
collision with a motorcycle driven by Clint Walters.

"On March 13, 2017, Mr. Walters filed suit against his
own [uninsured- or underinsured-motorist] carriers, and
against [De'Andrea] individually, in the Circuit Court of
Montgomery County, … alleging negligence and seeking
damages for personal injury.

"Prior to the events described above and at all relevant
times, [De'Andrea] was insured under a policy of liability
insurance issued by Defendant States Self-Insurers [Risk
Retention Group, Inc.,] insuring [the] City's agents and
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employees, in whole or in part, for liability claims arising from
motor vehicle collisions. This policy was brokered, negotiated
and sold to the … City through Defendant Colonial [Insurance
Agency, Inc].

"Prior to the events described above, [the] City entered
into a contractual agreement with … Colonial to purchase
liability insurance to protect and indemnify [De'Andrea] and
other City agents and employees acting within the line and
scope of their employment.

"Prior to the events described above and at all relevant
times, [the] City also voluntarily elected to act and acted, in
part, as an insurer for [De'Andrea] pursuant to a self-insured
retention arrangement. Specifically, the City conducted itself
as an insurer, attempted to negotiate settlement terms with
the attorneys for Mr. Walters, created and then failed to
address conflicts of interest common in third-party liability
insurance claims, and/or retained or otherwise supplied
defense counsel to [De'Andrea]. These actions expressly
and/or implicitly created an insurer/insured relationship
between the City and [De'Andrea]. The City therefore owed a
duty to conduct itself ethically and in good faith concerning
this relationship with [De'Andrea], and to comply with and
meet the insurance industry standards and obligations
concerning the same.

"[De'Andrea] was defended in the suit by the City's
attorneys pursuant to an express or implied, contract-based
attorney/client relationship. Defendants STACY LOTT
BELLINGER, BRITTNEY JONES, STEPHANIE SMITHEE,
WALLACE D. MILLS and WALLACE D. MILLS, PC,
appeared for [De'Andrea] in the underlying action, and/or
otherwise provided legal services to the Plaintiff as defined in
the [Alabama Legal Services Liability Act], Alabama Code
§§ 6-5-570, et. seq. (1988).

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"Defendants were under a duty to comply with their
contractual obligations, a duty to comply with and meet
statutory mandates, a duty to conduct themselves in good
faith and with a sense of fair dealing concerning [De'Andrea],
a duty to comply with Alabama law and practice, a duty to
ethically address and resolve conflicts of interest, and a duty
to represent and protect the interests of [De'Andrea].

"[De'Andrea] was never provided a reservation of rights
letter or otherwise notified of coverage/indemnity issues,
exclusions, or limitations.

"Settlement negotiations took place between the
attorneys for Mr. Walters, the City, and the insurance
defendants. [De'Andrea] was not involved, nor invited to
participate, in the settlement negotiations, was not at any
time apprised of the status of the negotiations, nor was given
an opportunity to approve any settlement offers.

"Following a trial, on or about May 5, 2022, judgment
was entered on a jury verdict in favor of Mr. Walters and
against … De'Andrea in the amount of $550,000 in
compensatory damages.

"No appeal was taken by the Defendants, and no
communication was made by the Defendants to [De'Andrea]
concerning the prospects, procedures, or deadlines for an
appeal, for post-trial relief, or for possible application of the
municipal damages cap. The time for post-trial motions and
appeal expired without [De'Andrea's] knowledge.

"Defendants did not seek, either before or after the
judgment, any ruling from the [trial] court regarding the
applicability of the statutory municipal damages cap, seek
remittitur, or argue to the court that the municipal damages
cap should apply.

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"Defendants have refused, and continue to refuse, to pay
and satisfy said judgment, or any portion of said judgment.

"Defendants acted negligently and/or wantonly and/or
recklessly and/or maliciously and/or willfully and/or
fraudulently and/or in bad faith and/or intentionally and/or
beyond their authority and/or under a mistaken
interpretation of the law when they caused or contributed to
cause the injuries to [De'Andrea].

"[De'Andrea] filed Chapter 7 Bankruptcy in the United
States Bankruptcy Court for the Middle District of Alabama
on July 27, 2022, as a direct and proximate result of
Defendants' failures to settle the underlying case,
communicate with [De'Andrea], and/or satisfy or obtain relief
from the judgment.

"[De'Andrea] has exhausted all administrative
remedies, and now brings this suit."

(Capitalization in original.)

Based on those allegations, De'Andrea asserted the following claims

against the City: breach of contract; bad faith; fraudulent

misrepresentation; negligent, wanton, or intentional bad-faith failure to

settle; a violation of the Alabama Legal Services Liability Act ("the

ALSLA"), § 6-5-570 et seq., Ala. Code 1975; negligence; wantonness;

conspiracy; and failure to procure insurance. In short, those claims are

based on De'Andrea's contention that the City "voluntarily assumed the

role of [her] insurer"; that the City fraudulently misrepresented to her
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that it "would handle [Clint Walters's negligence] claim against her" and

that "her personal assets were not at risk" in that action; that the City

failed to perform its "obligations and duties under the contracts of

liability insurance," primarily by "refus[ing] to satisfy the judgment" that

Walters has obtained against her; and that the City's attorneys breached

the applicable standard of care while defending her against Walters's

negligence claim.

The City filed multiple motions to dismiss the claims against it and

asserted various arguments in support of dismissal. Following two

hearings, the circuit court denied the City's motions on the basis that "it

is not apparent beyond doubt that [De'Andrea] can prove no set of

circumstances that would entitle her to relief." The City then timely filed

a petition for a writ of mandamus in which it has asked this Court to

direct the circuit court to dismiss the claims against the City.

Standard of Review

" ' " ' "The writ of
mandamus is a drastic and
extraordinary writ, to be
'issued only when there is:
1) a clear legal right in the
petitioner to the order
sought; 2) an imperative
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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); see
also Ex parte Ziglar, 669 So.
2d 133, 134 (Ala. 1995)." Ex
parte Carter, [807 So. 2d
534,] 536 [ (Ala. 2001)].'

" ' "Ex parte McWilliams, 812 So. 2d
318, 321 (Ala. 2001).

" ' " 'Subject to certain narrow
exceptions ..., we have held that,
because an "adequate remedy" exists
by way of an appeal, the denial of a
motion to dismiss or a motion for a
summary judgment is not reviewable
by petition for writ of mandamus.' Ex
parte Liberty Nat'l Life Ins. Co., 825
So. 2d 758, 761-62 (Ala. 2002)."

" 'Ex parte Kohlberg Kravis Roberts & Co., 78 So.
3d 959, 965-66 (Ala. 2011).'

"Ex parte MERSCORP, Inc., 141 So. 3d 984, 990 (Ala. 2013).
One of the exceptions to the general rule that the denial of a
motion to dismiss is not reviewable by mandamus is where
the motion to dismiss asserts a defense of immunity."

Ex parte Rock Wool Mfg. Co., 202 So. 3d 669, 671 (Ala. 2016).

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Discussion

The City raises several arguments in support of its petition, the

first being that, "under § 11-47-190, Ala. Code 1975, the City is immune

from suit for every legal theory De'Andrea has or could allege against the

City." Petition, p. 12. Section 11-47-190, Ala. Code 1975, states:

"No city or town shall be liable for damages for injury
done to or wrong suffered by any person or corporation, unless
such injury or wrong was done or suffered through the
neglect, carelessness, or unskillfulness of some agent, officer,
or employee of the municipality engaged in work therefor and
while acting in the line of his or her duty, or unless the said
injury or wrong was done or suffered through the neglect or
carelessness or failure to remedy some defect in the streets,
alleys, public ways, or buildings after the same had been
called to the attention of the council or other governing body
or after the same had existed for such an unreasonable length
of time as to raise a presumption of knowledge of such defect
on the part of the council or other governing body and
whenever the city or town shall be made liable for damages
by reason of the unauthorized or wrongful acts or negligence,
carelessness, or unskillfulness of any person or corporation,
then such person or corporation shall be liable to an action on
the same account by the party so injured. However, no
recovery may be had under any judgment or combination of
judgments, whether direct or by way of indemnity under
Section 11-47-24, [Ala. Code 1975,] or otherwise, arising out
of a single occurrence, against a municipality, and/or any
officer or officers, or employee or employees, or agents thereof,
in excess of a total $100,000 per injured person up to a
maximum of $300,000 per single occurrence, the limits set out
in the provisions of Section 11-93-2[, Ala. Code 1975,]
notwithstanding."
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In other words, § 11-47-190 provides the City with immunity from any

claim for damages asserted against it, unless the claim falls within one

of the two exceptions set forth in the statute. See Ex parte City of

Tuskegee, 932 So. 2d 895, 910 (Ala. 2005) (noting that § 11-47-190

"provides that a municipality is immune from tort liability," unless one

of the exceptions therein applies); and Ex parte City of Bessemer, 142 So.

3d 543, 550 (Ala. 2013) (noting the "general rule of immunity for

municipalities" under § 11-47-190 and the exceptions to that rule).

There is, however, a threshold problem with the City's immunity

argument, which is that the City did not raise that argument in the

circuit court, except with respect to De'Andrea's fraudulent-

misrepresentation claim. In fact, at the first hearing that occurred, the

City's attorney expressly stated that "[w]e're not dealing with immunity

in the slightest," and, although the City did subsequently raise an

immunity defense in its final motion to dismiss, it raised that defense

only with respect to De'Andrea's fraudulent-misrepresentation claim. 1

1We note that the City cited § 11-47-190 throughout its motion to

dismiss and at the hearings on its motion. However, except when
addressing De'Andrea's fraudulent-misrepresentation claim, the City
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Of course, defenses that are jurisdictional cannot be waived and therefore

may be raised for the first time in an appellate court, and some immunity

defenses carry jurisdictional implications. See, e.g., Ex parte Board of

Trs. of Univ. of Alabama, 264 So. 3d 850, 853 (Ala. 2021) (noting that

sovereign immunity is a jurisdictional bar). However, the immunity

provided by § 11-47-190 is not a jurisdictional defense but, rather, an

affirmative defense that must be specifically pleaded or is otherwise

waived. See City of Birmingham v. Business Realty Inv. Co., 722 So. 2d

747 (Ala. 1998) (holding that the immunity provided by § 11-47-190 is an

affirmative defense that must be specifically pleaded and that, as a

result, the City of Birmingham had waived any immunity defense it

might have asserted under § 11-47-190 by failing to raise that defense in

the circuit court).

"This Court will not grant relief to a petitioner or an appellant

based on an argument presented for the first time to this Court." Ex

parte City of Gulf Shores, 351 So. 3d 518, 521 (Ala. 2021). See also Ex

parte Staats-Sidwell, 16 So. 3d 789, 792 (Ala. 2008) (noting that, on

cited that statute only for the proposition that any obligation it might
have to indemnify De'Andrea is limited to $100,000.
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mandamus review, this Court will consider only those arguments raised

in the trial court). Thus, because the City limited its immunity defense

in the circuit court to De'Andrea's fraudulent-misrepresentation claim,

we will consider only whether the City is entitled to immunity from that

claim. Any immunity defense that the City might have asserted against

De'Andrea's other claims has been waived.

That said, the City argues that § 11-47-190 entitles it to immunity

from De'Andrea's fraudulent-misrepresentation claim, and, in support of

that argument, the City cites Altmayer v. City of Daphne, 613 So. 2d 366,

369 (Ala. 1993), in which this Court stated that § 11-47-190 "absolves a

municipality from liability for the intentional torts of its agents." Thus,

in that case, this Court held that the plaintiff "[could not] maintain

claims against the City [of Daphne] for [the city manager's] alleged

misrepresentation and promissory fraud." Id. De'Andrea counters with

the argument that fraud is not always an intentional tort -- an argument

that the City does not acknowledge in its reply brief, much less attempt

to refute.

De'Andrea correctly argues that fraudulent misrepresentation is

not always an intentional tort.
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"[A] false representation, even if made innocently or by
mistake, operates as a legal fraud if it is a material fact that
is acted upon with belief in its truth. See Mid-State Homes,
Inc. v. Startley, 366 So. 2d 734 (Ala. Civ. App. 1979); Hall
Motor Co. v. Furman, 285 Ala. 499, 234 So. 2d 37 (1970).
Moreover,

" '[a]n innocent misrepresentation is as much
a legal fraud as an intended misrepresentation
and the good faith of a party in making what
proves to be a material misrepresentation is
immaterial as to the question whether there was
an actionable fraud if the other party acted on the
misrepresentation to his detriment.'

"Smith v. Reynolds Metals Co., 497 So. 2d 93, 95 (Ala. 1986)
(citing Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233
So. 2d 484 (1970))."

Davis v. Sterne, Agee and Leach, Inc., 965 So. 2d 1076, 1091 (Ala. 2007).

See also § 6-5-101, Ala. Code 1975 ("Misrepresentations of a material fact

made willfully to deceive, or recklessly without knowledge, and acted on

by the opposite party, or if made by mistake and innocently and acted on

by the opposite party, constitute legal fraud." (emphasis added)).

Because fraudulent misrepresentation is not always an intentional

tort, the City is not automatically entitled to immunity from that claim

pursuant to § 11-47-190. Rather, at the motion-to-dismiss stage of the

proceedings, we must review the allegations in De'Andrea's complaint in

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order to make that determination, and those allegations " 'are viewed

most strongly in [De'Andrea's] favor.' " Magee v. Boyd, 175 So. 3d 79, 131

(Ala. 2015) (citation omitted). " '[D]ismissal is proper only [if] it appears

beyond doubt that [De'Andrea] can prove no set of facts in support of [her]

claim that would entitle [her] to relief.' " Id. (citation omitted).

In her complaint, De'Andrea alleged that the City had falsely

"represented to [her] that [it] would indemnify and protect her interests

in [the] matter [Walters had filed against her], that she was covered

under [an] [insurance] policy, that [the City] would handle [Walters's]

claim against her, and that her personal assets were not at risk."

De'Andrea also alleged that "[t]hese representations were made willfully

with an intent to deceive, recklessly and without knowledge of their

truthfulness, or due to mistake." (Emphasis added.) In other words,

according to De'Andrea's complaint, the City's alleged misrepresentation

might have been an " 'innocent misrepresentation.' "2 Davis, 965 So. 2d

at 1091 (citation omitted). Thus, at the motion-to-dismiss stage of the

2At the first hearing that occurred, De'Andrea's attorney stated that

he "need[ed] to do discovery" in order to determine whether the City's
alleged misrepresentation was intentional or an instance of "mistaken
fraud."
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proceedings, De'Andrea's fraudulent-misrepresentation claim is not

barred by § 11-47-190, which authorizes a claim for damages against a

municipality when that claim alleges that the plaintiff's injuries were

caused by the municipality's "neglect, carelessness, or unskillfulness."

Stated differently, there is potentially a set of facts that De'Andrea could

prove with respect to her fraudulent-misrepresentation claim that would

invoke an exception to the City's statutory immunity. Accordingly, the

circuit court did not err by rejecting, at the motion-to-dismiss stage of the

proceedings, the City's argument that it is entitled to immunity from

De'Andrea's fraudulent-misrepresentation claim.

The City raises several other arguments in its petition that, it says,

entitle it to dismissal of the claims De'Andrea has asserted against it.

Specifically, the City argues that it is "statutorily bound to indemnify

De'Andrea for [no] more than $100,000"; that it "is not an insurance

company and can never be an insurance company"; that it "had no duty

to procure insurance to protect De'Andrea in the course of her

employment"; that it "is not a 'legal service provider' as defined by the

ALSLA" and, moreover, that De'Andrea cannot prove any set of facts that

would establish a violation of the ALSLA; that, with respect to her
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fraudulent-misrepresentation claim, "De'Andrea could not have

justifiably relied on" the alleged misrepresentation; and that, "[b]ecause

De'Andrea has no viable causes of action against the City, her allegations

… provide no conspiracy cause of action." Petition, pp. 16, 18, 19, 23, 30,

31.

However, this Court generally will not entertain a mandamus

petition that challenges the denial of a motion to dismiss because, should

the plaintiff ultimately obtain a favorable judgment, the movant typically

has an adequate remedy by way of an appeal. Ex parte Rock Wool Mfg.,

supra. As noted, there are some limited exceptions to this general rule,

which is the reason we have addressed the City's immunity argument --

a recognized exception to the rule, id. -- and these exceptions exist

because they involve issues for which an appeal has been deemed an

inadequate remedy. See Ex parte Hodge, 153 So. 3d 734, 748 (Ala. 2014)

(" '[T]he very reason for the limited exceptions we have carved out to the

general rule that interlocutory denials of motions to dismiss … cannot be

reviewed by way of a petition for a writ of mandamus is that there are

certain defenses (e.g., immunity …) that are of such a nature that a party

simply ought not to be put to the expense and effort of litigation.' "
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(citation omitted)). But this Court has previously emphasized that,

although we will conduct an interlocutory review of an immunity issue,

" '[w]e confine our interlocutory review to matters germane to the issue of

immunity' " and "will not consider secondary arguments" that have no

bearing on that issue. Ex parte Kelley, 296 So. 3d 822, 826 (Ala. 2019)

(quoting Ex parte Hudson, 866 So. 2d 1115, 1120 (Ala. 2003)).

The City's remaining arguments are not germane to the issue of

immunity and do not fall within the previously recognized exceptions to

the general rule that this Court will not consider a mandamus petition

that challenges a trial court's denial of a motion to dismiss. See Ex parte

Hodge, 153 So. 3d at 749 (listing the recognized exceptions). Also, the

City has neither asked us to adopt new exceptions to that rule nor

suggested that raising its secondary arguments in an appeal will be an

inadequate remedy. As this Court has repeatedly stated: " 'The burden

rests on the petitioner to demonstrate that its petition presents …

an exceptional case -- that is, one in which an appeal is not an adequate

remedy.' " State v. Martin, 69 So. 3d 94, 97 (Ala. 2011) (citation omitted).

Thus, because the City has not demonstrated (or even argued) that an

appeal will not provide it with an adequate remedy for addressing its
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non-immunity-based arguments, the City has failed to carry its burden

of demonstrating that those arguments entitle it to the extraordinary

relief provided by a writ of mandamus. Rather, if there is any merit to

those arguments, the City may raise them in an appeal should De'Andrea

ultimately obtain a judgment adverse to the City.

Conclusion

For the reasons set forth in this opinion, the City has not

demonstrated that it is entitled to a writ of mandamus directing the

circuit court to dismiss the claims that De'Andrea has asserted against

it. Thus, the City's petition for a writ of mandamus is denied.

PETITION DENIED.

Stewart, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim, Cook,

and Lewis, JJ., concur.

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