
    Jerry Wayne SUTTLES and City of Homewood v. Eldetraud “Trudy” ROY.
    1071453.
    Supreme Court of Alabama.
    May 21, 2010.
    As Modified on Denial of Rehearing July 22, 2011.
    
      Timothy P. Donahue and A. Donald Scott, Jr., of Donahue & Associates, LLC, Birmingham, for appellant Jerry Wayne Suttles.
    Thomas S. Hale and Terry A. Sides of Hale, Sides & Akins, L.L.C., Birmingham, for appellant City of Homewood.
    Rip Andrew, Alan B. Lasseter, and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellee.
    Lorelei Lein, deputy gen. counsel, Alabama League of Municipalities, Montgomery, for amicus curiae Alabama League of Municipalities, in support of the appellants.
    George W. Royer, Jr., and Scott W. Faulkner of Lanier Ford Shaver & Payne, P.C., Huntsville, for amicus curiae City of Huntsville, in support of the appellants.
    Alex L. Holtsford, Jr., Rick A. Howard, and April W. McKay of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery; and David A. McDowell of McDowell, Faulk & McDowell, LLC, Prattville, city atty., City of Prattville; Art Eisner, city atty., City of Millbrook; Richard Manley of Manley Trager Perry & Stapp, De-mopolis, city atty., City of Demopolis; and Jimmy Nunn, city atty., City of Selma, for amici curiae City of Prattville, City of De-mopolis, City of Selma, and City of Mill-brook, in support of the appellants.
    Rocco J. Leo and Horace V. O’Neal, Jr., of Leo & O’Neal, Birmingham, for amicus curiae Alabama Association of Police Chiefs, in support of the appellants.
    
      Dan Warnes of Warnes & Logan, Gun-tersville, for amicus curiae City of Gun-tersville, in support of the appellants.
   SHAW, Justice.

The City of Homewood (“Homewood”) and Jerry Wayne Suttles, a police officer employed by Homewood, appeal by permission, in accordance with Rule 5, Ala. R.App. P., from the denial of their motion for a summary judgment in a personal-injury action filed by Eldetraud “Trudy” Roy. We affirm in part, reverse in part, and remand.

Facts and Procedural History

According to the complaint, in May 2006 Roy was walking along Central Avenue in Homewood. When she approached the corner of 29th Court Street and Central Avenue, several Homewood police officers on motorcycles were stopped at the intersection directing traffic. Apparently, a fund-raising event known as the “Torch Run” was underway and participants were about to proceed through that intersection.

Roy alleges that she was given permission by one of the police officers to cross the intersection. As she did so, she was struck by a motorcycle being driven by Suttles: Roy contended that, at the time of the collision, Suttles “was driving at a high rate of speed while conducting ‘leap frog’ maneuvers purportedly to control traffic during the Torch Run event.” Roy suffered numerous injuries.

On April 14, 2007, Roy filed a complaint seeking damages from Homewood, Suttles, and fictitiously named defendants, claiming that they had caused her injuries. She also alleged that Homewood was vicariously hable for Suttles’s actions and for the actions of certain fictitiously named defendants. Roy named Suttles in both his official capacity as a Homewood police officer and in his individual capacity. Suttles and Homewood separately answered Roy’s complaint.

In September 2007, Suttles and Home-wood filed a joint motion seeking a partial summary judgment on the issue of damages. Specifically, they alleged that, at the time of the accident, Suttles was acting in the line and scope of his employment as a police officer of Homewood. Under Ala. Code 1975, § 11-93-2 and §§ ll-47-24(a) and -190, they contended, the maximum amount of damages Roy could recover in her action against them was $100,000. Thus, Homewood and Suttles sought a partial summary judgment, stating:

“The applicable law in the present case is clear. Officer Suttles and the City of Homewood cannot settle or compromised the plaintiffs claims against them for any amount greater than the statutory $100,000 cap. Rather than spend the extraordinary time and expense involved with the litigation of this cause of action, the defendants should be allowed to settle the plaintiffs claims pursuant to the statutory cap. Therefore, there is no genuine issue of material fact as to the maximum amount of damages that the plaintiff could recover from the defendants, and the defendants are entitled to judgment as a matter of law pertaining to their maximum liability of $100,000.
“WHEREFORE, premises considered, the defendants respectfully request this Honorable Court enter an Order, as requested in defendants’ Memorandum of Law, granting Summary Judgment in their favor and holding that the Statutory Cap of $100,000 applies to this cause of action.”

Suttles subsequently also moved for a summary judgment claiming that he was entitled to State-agent immunity as to the claims alleged against him in his individual capacity.

Roy opposed Homewood and Suttles’s motion for a partial summary judgment on the damages issue, arguing that, although the damages for claims against Homewood and against Suttles in his official capacity may be capped at $100,000, the cap does not apply to the claim against Suttles in his individual capacity.

In an order dated June 12, 2008, the trial court granted in part and denied in part the joint motion:

“The City of Homewoodf’s] motion asking this Court to enter judgment stating as a matter of law that the Plaintiff Eldetraud ‘Trudy’ Roy cannot recover against the city an amount exceeding the damages limitations under Ala.Code [1975,] § 11-98-2, is hereby GRANTED.
“To the extent the Defendants’ Motion for Summary Judgment attempts to limit Officer Suttlesf’s] liability of One Hundred Thousand Dollars ($100,000.00) under Plaintiffs claim against him in his personal and individual capacity, Defendants’ Summary Judgment is DENIED.
“The Court further finds that there are genuine issues of fact and that it is for a jury to decide whether Officer Suttles is liable for claims against him in his individual and personal capacity.”

The trial court subsequently certified its June 12 order as appropriate for an interlocutory appeal under Rule 5, Ala. R. App P., and stated that the action presented three controlling questions of law “as to which there are substantial grounds for difference of opinion.” Homewood and Suttles petitioned this Court for an interlocutory appeal pursuant to Rule 5; we granted the petition and ordered answer and briefs.

I.

The first question identified by the trial court is as follows:

“1. Given [Roy’s] concession that the acts which form the basis of her claims against the City of Homewood and Officer Suttles were performed by Suttles in the line and scope of his employment as a police officer for the City of Home-wood, can [Roy] nevertheless state a cognizable, direct claim for relief against Officer Suttles in his individual and personal capacity?”

On appeal, Homewood and Suttles argue that because the accident occurred while Suttles was working in the line and scope of his employment for Homewood, Roy cannot pursue an action against Suttles in his individual capacity. Homewood and Suttles’s sole argument in support of this contention relies on the rationale of our recent decision in Ex parte Hale, 6 So.3d 452 (2008). In Hale, this Court, citing Ex parte Davis, 930 So.2d 497 (Ala.2005), noted that sheriffs (and deputy sheriffs) may be immune, under Ala. Const.1901, art. I, § 14, from a civil action seeking damages from them in their individual capacities. Hale, 6 So.3d at 457. See also Davis, 930 So.2d at 501 (noting that deputy sheriffs enjoy the same immunity as sheriffs). Homewood and Suttles contend that Sut-tles should be afforded similar immunity from a suit naming him in his individual capacity. We disagree.

Sheriffs and municipal peace officers are protected from suits seeking damages from them in their individual capacity by two different forms of immunity: sheriffs are protected by State immunity under § 14, and municipal peace officers are protected by State-agent immunity. These two types of immunity, and accordingly sheriffs and municipal peace officers, are treated differently under Alabama law.

Generally, sheriffs enjoy State immunity under § 14 from actions against them in their individual capacities for acts they performed in the line and scope of their employment. Davis, 930 So.2d at 500-01 (noting in an action against a deputy sheriff that “a claim for monetary damages made against a constitutional officer in the officer’s individual capacity is barred by State immunity whenever the acts that are the basis of the alleged liability were performed within the course and scope of the officer’s employment”); see also Hale, 6 So.3d at 457 (holding that acts by a sheriff, which gave rise to the plaintiffs claim against him, were taken “in the execution of his duties as sheriff,” and, thus, the sheriff was immune under § 14 from an action seeking damages against him in his individual capacity). This immunity is not unlimited and, in certain instances, § 14 does not protect sheriffs from an action against them in their individual capacity. Alexander v. Hatfield, 652 So.2d 1142, 1144 (Ala.1994) (noting situations in which § 14 does not shield sheriffs from an action brought against them in either their official or individual capacities).

Conversely, peace officers are afforded immunity by Ala.Code 1975, § 6-5-338(a), and the test for State-agent immunity set forth in Ex parte Cranman, 792 So.2d 392 (Ala.2000), as modified in Hollis v. City of Brighton, 950 So.2d 300 (Ala.2006) (incorporating the peace-officer-immunity standard provided in § 6-5-338(a) into the State-agent-immunity analysis found in Cranman). See Ex parte Kennedy, 992 So.2d 1276 (Ala.2008), and City of Birmingham v. Brown, 969 So.2d 910, 916 (Ala.2007) (“Immunity applies to employees of municipalities in the same manner that immunity applies to employees of the State.” (citing Cranman, supra)). Under that formulation,

“ ‘[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
“ ‘(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons, or serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala.Code 1975.’

Hollis, 950 So.2d at 309 (quoting and modifying Cranman, 792 So.2d at 405). In certain circumstances, a peace officer is not entitled to such immunity from an action seeking liability in his or her individual capacity:

“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

Cranman, 792 So.2d at 405.

The immunity provided to sheriffs and deputy sheriffs stems from the fact that a sheriff is an executive officer of the State: “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.... ” Parker v. Amerson, 519 So.2d 442, 442-43 (Ala.1987). See also Ala. Const.1901, art. V, § 112 (“The executive department shall consist of a governor, lieutenant governor, attorney-general, state auditor, secretary of state, state treasurer, superintendent of education, commissioner of agriculture and industries, and a sheriff for each county.”). “[A] suit against a sheriff is ‘essentially a suit against the state’ and thus ‘not maintainable’ ” under § 14 of the constitution. Parker, 519 So.2d at 446 (quoting Montiel v. Holcombe, 240 Ala. 352, 199 So. 245 (1940)).

Municipal peace officers, however, are “deemed to be officers of this state” for purposes of Ala.Code 1975, § 6-5-338(a), and thus whether they are afforded immunity when sued in their individual capacity is determined under a different standard:

“ “Whether [§ 14] immunity serves as a defense to an action against a state officer or employee sued in his individual capacity depends upon the degree to which the action involves a State interest....
“ ‘When determining whether a State interest in an action against a state official or employee in his or her individual capacity is sufficient to trigger the immunity granted by § 14, our cases distinguish between the standards applied to those state agents or employees whose positions exist by virtue of legislative pronouncement and those who serve as the constitutional officers of this State. We have held that State-agent immunity may bar an action against a state agent or employee under the principles announced in Ex parte Cranman, 792 So.2d 392 (Ala.2000). See Ex parte Butts, 775 So.2d 173 (Ala.2000) (adopting, by majority, the Cranman restatement of the rule governing State-agent immunity). However, this Court has consistently held that a claim for monetary damages made against a constitutional officer in the officer’s individual capacity is barred by State immunity whenever the acts that are the basis of the alleged liability were performed within the course and scope of the officer’s employment.’ ”

Hale, 6 So.3d at 457 (quoting Davis, 930 So.2d at 500-01 (emphasis in Hale omitted; other emphasis added)).

Homewood and Suttles contend that “[tjhere is no factual or legal basis for treating these immunities any differently under these circumstances.” Homewood and Suttles’s brief at 15. However, as the above authorities indicate, the distinction between the type of immunity afforded sheriffs and the type afforded municipal peace officers is rooted in the unique constitutional status of sheriffs as executive officers, juxtaposed against the position of municipal peace officers, which is created by statute. Although Suttles may be entitled to State-agent immunity under the test in Cranman, as extended in Hollis, Homewood and Suttles have not demonstrated that he is entitled to § 14 immunity under the rationale of Hale, or that Hale provides Suttles with blanket immunity from an action against him in his individual capacity. Homewood and Sut-tles have thus not established that the trial court erred in denying their motion for a summary judgment on this ground.

II.

The trial court’s second controlling question of law is as follows:

“2. If [Roy] can state a cognizable, direct claim against Officer Suttles in his individual and personal capacity (notwithstanding [Roy’s] concession that Suttles’[s] alleged actions which form the basis of her claims were performed by him in the line and scope of his employment), does Alabama law nevertheless cap at no more than $100,000 the damages which, in the event of a finding of liability, [Roy] may in the aggregate recover against the City of Homewood and Officer Suttles?”

Homewood and Suttles argue, citing Benson v. City of Birmingham, 659 So.2d 82 (Ala.1995), and Smitherman v. Marshall County Commission, 746 So.2d 1001 (Ala.1999), that if Roy can maintain an action against Suttles in his individual capacity, then Alabama law caps the recoverable damages against Suttles to $100,000.

Alabama Code 1975, § 11-47-190, states generally that a city or town may be found liable for the actions of its employees, and provides for a statutory cap of recovery:

“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, 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 [of] $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 notwithstanding.”

Section 11-93-2 similarly provides a $100,000 cap for recovery against “a governmental entity”:

“The recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for bodily injury or death for one person in any single occurrence. Recovery of damages under any judgment or judgments against a governmental entity shall be limited to $300,000.00 in the aggregate where more than two persons have claims or judgments on account of bodily injury or death arising out of any single occurrence. Recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for damage or loss of property arising out of any single occurrence. No governmental entity shall settle or compromise any claim for bodily injury, death or property damage in excess of the amounts hereinabove set forth.”

Further, under § 11^47-24(a), municipal corporations are required to indemnify their employees in certain situations:

“Whenever any employee of a municipal corporation of the State of Alabama shall be sued for damages arising out of the performance of his official duties, and while operating a motor vehicle or equipment engaged in the course of his employment, such government agency shall be authorized and required to provide defense counsel for such employees in such suit and to indemnify him from any judgment rendered against him in such suit. In no event shall a municipal corporation of the state be required to provide defense and indemnity for employees who may be sued for damages arising out of actions which were either intentional or willful or wanton.”

In Benson, supra, this Court was called upon to determine whether the $100,000 damages cap on municipal liability found at § 11-93-2 was applicable to indemnity claims under § ll-47-24(a). Specifically, the trial court in that case entered a judgment on a jury verdict in a wrongful-death action against the City of Birmingham (“the City”) and one of its police officers for $1,600,000. The City made a payment of $100,000, plus interest, to the plaintiff, arguing that under § 11-93-2 it was required to pay no more than that amount. However, the plaintiff argued that § 11-47-24 required the City to indemnify its employee and that there was no limitation on the amount of indemnity provided by that Code section; thus, the plaintiff argued, the City was responsible for the entire amount of the $1,600,000 judgment.

This Court described the issue on appeal as “whether the City may be liable for more than $100,000 when it is required to indemnify a negligent employee.” 659 So.2d at 86. Harmonizing the two Code sections, this Court stated:

“For § 11-93-2 to be given proper effect, the cap must be applicable to indemnity actions. If it were not, the City could be subjected to judgments over $100,000 just as surely as if the cap were not in place, because almost all actions against municipalities will be based on allegations of negligence by municipal employees. Thus, if plaintiffs were able to circumvent the cap simply by naming an employee as a defendant and then requiring the city to indemnify the employee for the entire amount of a large judgment, the cap would effectively be repealed. This result can be avoided by construing the two statutes harmoniously — holding that § 11-47-24 provides for indemnification only to the limits of § 11-93-2.”

659 So.2d at 86. We thus held “that a municipality may indemnify a negligent employee only up to the limits specified in §11-93-2....” 659 So.2d at 87.

Additionally, in Smitherman, supra, the plaintiffs sued various county officials and employees for damage sustained as the result of an allegedly improperly maintained roadway. The Court held that the claims against the county officials and county employees named in their official capacity were subject to the $100,000 cap of § 11-93-2. 746 So.2d at 1008. This was because “claims against county commissioners and employees in their official capacity are, as a matter of law, claims against the county....” Smitherman, 746 So.2d at 1007. See also Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 133 (Ala.2002) (“A suit against ... State agents in their official capacities[ ] is a suit against the State.”).

Insofar as Roy’s action seeks damages against Suttles in his official capacity, as noted in Smitherman,, the cap of § 11-93-2 limits any recovery against Homewood and Suttles to $100,000. Suttles and Homewood thus contend that “it makes no sense at all” for the claims against Suttles in his official capacity “to be governed by the statutory damages cap” without the claims against him in his individual capacity also being subject to the cap. Home-wood and Suttles’s brief at 20. This distinction — capping damages for claims against Suttles in his official capacity but not capping damages for claims asserted against him in his individual capacity— however, is clearly provided by the cited authorities.

Section 11-93-2 caps the damages one may recover “against a governmental entity.” The policy of § 11-93-2 is to “preserve” and “protect! ] the public coffers, for the benefit of all of the citizenry....” Benson, 659 So.2d at 86-87. A claim against an employee in his or her individual capacity, however, does not seek to recover damages from the governmental entity. See Gamble v. Florida Dep’t of Health & Rehabilitative Servs., 779 F.2d 1509, 1513 (11th Cir.1986) (“Whether a state officer is being sued for damages in an official or an individual capacity is not mere semantics; the question is whether the plaintiff is reasonably seeking relief from the state coffers or from the individual’s assets.” (quoted in Ex parte Troy Univ., 961 So.2d 105, 110 (Ala.2006))).

Homewood and Suttles contend that at the time of Roy’s injuries Suttles was acting in the line and scope of his employment and that there is no factual distinction between Roy’s claims against Suttles in his official capacity and in his individual capacity. They thus argue that “the inescapable conclusion is that it makes no sense at all” for damages sought against him in his official capacity to be capped, while damages sought against him in his individual capacity are not. However, no authority is cited or argument advanced demonstrating that this Court or the trial court can consider the individual claim against Suttles as, in substance, an official-capacity claim subject to the cap of § 11-93-2; further, nothing in Benson, Smitherman, or § 11-93-2 allows such a result. “Rule 28(a)(10), Ala. RApp. P., requires that an argument in an appellant’s ... brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ ” Long v. Bryant, 992 So.2d 673, 683 (Ala.2008). “ ‘[Wjhere no legal authority is cited or argued, the effect is the same as if no argument had been made.’ ” Steele v. Rosenfeld, LLC, 936 So.2d 488, 493 (Ala.2005) (quoting Bennett v. Bennett, 506 So.2d 1021, 1023 (Ala.Civ.App.1987)). Thus, Homewood and Suttles have not demonstrated that the trial court erred in denying their motion for a summary judgment on this issue.

III.

In its third question, the trial court asks whether a determination of State-agent immunity under Cranman is a question of law or a question of fact:

“If [Roy] can state a cognizable, direct claim against Officer Suttles in his individual and personal capacity (notwithstanding [Roy’s] concession that Sut-tles’[s] alleged actions which form the basis of her claims were performed by him in the line and scope of his employment), [then] Suttles’[s] liability is dependent on, among other things, whether he is entitled to immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000), and its progeny. Is it a question of law for the court (as is the similar defense of qualified immunity in federal actions under 42 U.S.C. § 1983) or a question of fact for the jury whether Suttles is entitled to such immunity? If it is [a] question of law for the court, then based on the record evidence, is Suttles immune from [Roy’s] claims?”

In its order denying Homewood and Suttles’s motion for a summary judgment, the trial court stated: “The Court further finds that there are genuine issues of fact and that it is for a jury to decide whether Officer Suttles is liable for claims against him in his individual and personal capacity.” Homewood and Suttles construe this as a holding that the availability of State-agent immunity is a question of fact for the jury.

Prior decisions of this Court state that “ ‘ “[t]he applicability of the doctrine of discretionary function [now called State-agent immunity] must be determined on a case-by-case basis, and it is a question of law to be decided by the trial court.” ’ ” Ex parte Sawyer, 984 So.2d 1100, 1106-07 (Ala.2007) (quoting Ryan v. Hayes, 831 So.2d 21, 28 (Ala.2002), quoting in turn Ex parte Davis, 721 So.2d 685, 689 (Ala.1998)). See also Lightfoot v. Floyd, 667 So.2d 56, 64 (Ala.1995) (“The question whether a public official is entitled to qualified immunity is one to be decided as a matter of law.”). In determining whether immunity under Cranman applies, this Court has established a “burden-shifting” process:

“In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiffs claims arise from a function that would entitle the State agent to immunity. Giambrone [v. Douglas, 874 So.2d 1046,] 1052 [ (Ala.2003) ]; 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). When applied in the context of a motion for a summary judgment, this process may result in an issue of disputed material fact, and a determination of that fact may require resolution by a jury: “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.” Ex parte Wood, 852 So.2d 705, 708 (Ala.2002); Blackwood v. City of Hanceville, 936 So.2d 495, 507 (Ala.2006) (holding that there was a genuine issue of material fact as to the State-agent defendant’s rate of speed; a jury’s determination of that speed would determine whether the defendant was entitled to State-agent immunity and privilege under Ala.Code 1975, § 6-5-338(a) and § 32-5A-7(b)(3)). The existence of a genuine issue of material fact may require a factual issue to be determined by a jury, “under appropriate instructions from the trial court,” Blackwood, 936 So.2d at 507, but the availability of State-agent immunity is ultimately a question of law to be determined by the court. To the extent that the trial court held that the jury would determine the availability to Suttles of State-agent immunity, and not just disputed issues of fact, the trial court’s denial of the motion for a summary judgment is due to be reversed.

Suttles and Homewood request this Court to review the evidence and determine whether Suttles was entitled to State-agent immunity under Cranman. However, it is unclear whether the trial court has yet undertaken such an examination. Specifically, the third question states in part: “If [the existence of State-agent immunity] is [a] question of law for the court, then based on the record evidence, is Suttles immune from [Roy’s] claims?” This issue must first be addressed by the trial court, subject, under appropriate circumstances, to review by this Court.

Conclusion

The trial court’s denial of Homewood and Suttles’s motion for a summary judgment as to the claims against Suttles in his individual capacity is affirmed. That part of the trial court’s judgment holding that the jury is to decide whether Suttles is entitled to State-agent immunity is reversed, and the cause is remanded for the trial court to determine whether Suttles’s summary-judgment motion demonstrates that he is entitled to a judgment as a matter law on that issue.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

On Application for Rehearing

SHAW, Justice.

APPLICATION FOR REHEARING. OVERRULED; OPINION OF MAY 21, 2010, MODIFIED.

COBB, C.J., and WOODALL, STUART, PARKER, and MURDOCK, JJ., concur.

BOLIN and SHAW, JJ., concur specially.

SHAW, Justice

(concurring specially).

I concur in overruling the application for rehearing. I write specially to address some of the concerns expressed by the parties and amici curiae in briefs filed on application for rehearing.

Arguments Advanced by Homewood and Suttles

As noted in the opinion on original submission, the first question certified for this permissive appeal asked whether Suttles, who was allegedly acting in the line and scope of his employment at the time of the incident that is the basis of the underlying action, could be sued in his individual capacity. Homewood and Suttles offered a very limited argument on this issue on original submission, focusing their argument on the rationale of this Court’s decision in Ex parte Hale, 6 So.3d 452 (2008), a decision involving the immunity from suit afforded sheriffs deputies under Ala. Const. 1901, art. I, § 14. The opinion addresses only that argument; other grounds that may prevent Suttles from being sued in his individual capacity were not raised and therefore are not addressed. Whether some other law or legal rationale offers Suttles immunity from being sued in his individual capacity is left to another day.

On application for rehearing, Homewood and Suttles state that they cited authorities other than Hale for the proposition that Suttles could not be sued in his individual capacity; specifically, they note that they argued in their reply brief that Smitherman v. Marshall County Commission, 746 So.2d 1001 (Ala.1999), holds that a public officer or employee engaged in the performance of official duties acts only within his or her official capacity and may be sued only in that capacity. This is a proposition distinct from the Hale argument. However, issues raised for the first time in a reply brief are not properly before us. See, e.g., Byrd v. Lamar, 846 So.2d 334, 341 (Ala.2002) (“[T]his Court does not address issues raised for the first time in a reply brief.”). The opinion on original submission in note 4, 75 So.3d at 98, tacitly acknowledges that Homewood and Suttles mentioned, but failed to argue, this issue in their initial brief; nevertheless, we addressed and rejected that argument.

In their application for rehearing, Homewood and Suttles argue that in Smitherman “this Court held that a public officer or employee who is engaged in the performance of his official duties acts only within his official capacity and is only subject to suit in his official capacity....” I disagree that that was the holding of Smitherman.

In Smitherman, the plaintiffs sued various county commissioners and a county engineer seeking damages for personal injury sustained as the result of an allegedly improperly maintained roadway. The trial court noted that under Cook v. St. Clair County, 384 So.2d 1 (Ala.1980), the county commissioners could not be subject to suit in their individual capacities. Smitherman affirmed the holding that, under Cook, the commissioners were subject to suit only in their official capacities. In other words, the Court noted what appears to be a per se rule barring individual-capacity suits against county commissioners.

The individual-capacity claim against the county engineer involved a different analysis. The trial court held: “ ‘There is no evidence that County Engineer, Bob Pi-rando, acted in his individual capacity with regard to the issues presented in the Plaintiffs’ Complaint. Accordingly, Bob Pirando, in his individual capacity, is dismissed with prejudice.’ ” 746 So.2d at 1003. On appeal, as to that aspect of the trial court’s judgment, this Court held:

“With regard to the claim against the county engineer in his individual capacity, the plaintiffs present no argument as to why the summary judgment was not proper as to the county engineer, and the record supports that summary judgment as to the county engineer. Consequently, we affirm the judgment as it relates to the county commissioners and the county engineer in their individual capacities.”

746 So.2d at 1004 (emphasis added). Smitherman gives no explanation as to what evidence the record contained in support of the summary judgment as to the county engineer. It is impossible to determine what actions the engineer did or did not undertake or how those acts occurred as part of, or could not be outside of, the line and scope of the engineer’s duties. It is clear, however, that the Court did not hold that the per se rule of Cook barring individual-capacity claims against county commissioners also applied to county employees. Indeed, there would have been no authority for the Court to do so, because nothing in Cook indicates that the rule addressed there would extend to county employees who are not part of a county’s governing body: “Because counties, as bodies corporate, act through their governing bodies, the county commission[s], [the county] commissioners likewise are subject to suit in tort, not in their individual capacities but only in their official capacities.” 384 So.2d at 7 (opinion on rehearing). In other words, the per se rule barring an individual-capacity action against a county commissioner exists by virtue of the county commissioner’s role as a part of the governing body of the county.

There is no argument before us in the instant case to the effect that municipal employees share the same “immunity” from suit in their individual capacities as county commissioners. Homewood and Suttles appear to assume that the evidence in Smitherman indicated that the county engineer — a county employee — was acting within the scope of his official duties and that the per se rule of Cook also barred individual-capacity claims against such county employees. However, all we know is that the trial court stated, without explanation, that there was no evidence indicating that the county engineer was acting within his “individual capacity.” We cannot infer from this statement the broad overarching rule that a municipal employee performing official duties can be sued only in his official capacity. Smitherman certainly does not state such a broad rule, and no case since Smitherman was decided has cited Smitherman as standing for such a proposition. There can be no argument that the opinion in this case creates new law, that it treads new ground, or that it removes protections once afforded county or municipal employees.

However, none of this matters. The Court in Smitherman explicitly did not address the issue because the summary judgment in favor of the county engineer in his individual capacity was not challenged on appeal: “[T]he plaintiffs present no argument as to why the summary judgment was not proper as to the county engineer.... ” 746 So.2d at 1004. Because the issue was not raised, the Court could not — indeed there was no reason to — address it. See Harding v. Pierce Hardy Real Estate, 628 So.2d 461, 462 (Ala.1993) (“This Court’s review is limited to the issues raised on appeal.”), and Ex parte Town of Lowndesboro, 950 So.2d 1203, 1210 (Ala.2006) (holding that an issue' that was “not decided by the courts made part of the opinion of the case ... cannot be binding precedent on the issue” (footnote omitted)). Although the trial court in Smitherman may have held that the county engineer’s actions were all taken in his official capacity and, thus, that he was not subject to a suit in his individual capacity, this Court passed no judgment on that holding, which was not challenged on appeal. Thus, Smitherman cannot be read to make any holding on that issue. I see nothing in what has been presented on application for rehearing indicating that this Court misapprehended the law in interpreting Smitherman.

Homewood and Suttles also contend that, as a matter of public policy, municipal police officers should be granted blanket immunity from actions against them in their individual capacities, as are sheriffs deputies, who are afforded immunity under § 14. This is contrary to current Alabama law, which is to the effect that § 14 immunity “does not extend to municipalities or its agents.” Ex parte City of Tuskegee, 932 So.2d 895, 901 n. 3. (Ala.2005); see also Norris v. City of Montgomery, 821 So.2d 149, 152-53 (Ala.2001) (holding that absolute immunity does not extend to municipalities); and Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975) (abolishing the doctrine of municipal immunity). No authority is cited for the proposition that the § 14 immunity afforded sheriffs deputies can or should be extended to municipal police officers. I thus see nothing indicating that this Court misapprehended the law on this issue in the opinion on original submission.

In any event, “it is well established that the legislature, and not this Court, has the exclusive domain to formulate public policy in Alabama.” Boles v. Parris, 952 So.2d 364, 867 (Ala.2006). See also Marsh v. Green, 782 So.2d 223, 231 (Ala.2000) (“Matters of policy are for the Legislature and, whether wise or unwise, legislative policies are of no concern to the courts.”). Moreover, the legislature, in Ala.Code 1975, § 6-5-338, has acted to extend a form of immunity to shield municipal officers who are sued in their individual capacities. This form of immunity has been incorporated into the analysis for determining State-agent immunity under the rule as restated in Ex parte Cranman, 792 So.2d 392 (Ala.2000), which analysis the trial court in this case has yet to perform. To argue that the decision in the instant case strips police officers of protection from suit ignores the fact that protections are afforded officers and that the underlying litigation has not yet reached the point where the trial court must examine whether those protections apply.

In the third issue in their brief on rehearing, Homewood and Suttles contend that, if Roy is able to assert individual-capacity claims against Suttles, then any damages award must be capped at $100,000 by Ala.Code 1975, § 11-47-190. As noted in the opinion on original submission, we have refused to address this issue based on the lack of argument regarding it in Homewood and Suttles’s initial brief. Because we do not address this issue, it must wait to be resolved on another day.

Lastly, Homewood and Suttles contend that the indemnification provisions of Ala. Code 1975, § 11-47-24, will require Home-wood to indemnify Suttles for any judgment he is required to pay, regardless of whether he was named in his individual or official capacity. Homewood and Suttles contend that this Court “erred in failing to recognize” that fact.

This specific issue was not argued in Homewood and Suttles’s initial brief on appeal. The arguments regarding § 11-47-24 related only to the issue whether Roy should be allowed to pursue a claim against Suttles in his individual capacity. Further, we noted that no authority was cited for the proposition that § 11-93-2 capped any claims against Suttles in his individual capacity at $100,000. Whether the caps on governmental liability found in § 11-93-2 or § 11-47-190 also act as caps on the personal liability of a governmental employee because of the duty to indemnify, or whether the statutory caps simply limit the amount of indemnification required to be paid by the governmental entity, are issues to be resolved another day.

Arguments of the Amici Curiae

Numerous amici curiae have filed briefs' in support of granting a rehearing in this case. Many of these briefs contain arguments regarding the questions certified by the trial court. Specifically, several arguments are made that there may exist other bases for holding that acts performed by a municipal officer in the line and scope of employment could not form the grounds for an individual-capacity claim against such officer. However, issues and arguments raised by amici curiae and not argued by the parties to the ease are not considered by this Court. See Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 174 (Ala.2005) (stating that, to the extent an amicus curiae advances different arguments from the actual parties to the suit, those arguments cannot be considered). Thus, those issues are left ‘“for decision when properly raised and presented.’” Courtaulds Fibers, Inc. v. Long, 779 So.2d 198, 202 n. 1. (Ala.2000) (quoting State ex rel. Baxley v. Johnson, 293 Ala. 69, 74, 300 So.2d 106, 110 (1974)).

Other amici curiae have argued that this Court should address separate issues related to whether municipal or county employees can be held liable for actions taken while on the job or while engaging in their official duties. However, “[t]his Court’s review is limited to the issues raised on appeal.” Harding v. Pierce Hardy Real Estate, 628 So.2d 461, 462 (Ala.1993). Thus, a decision on these separate issues will have to wait until they are actually presented to this Court by parties to a proceeding properly before this Court.

Finally, some amici curiae have grossly misinterpreted our opinion in this case. One amicus curiae argues that our decision effectively overrules Cook v. St. Clair County, supra, which holds that county commissioners are not subject to suit in their individual capacities. However, the opinion makes no holding regarding county commissioners and, in fact, states that county commissioners cannot be sued in their individual capacities. Additionally, the issue whether municipal officers are to be treated the same as county commissioners under Cook was never argued on appeal; therefore, the opinion is simply silent as to this issue.

Several amici curiae also appear to contend that the opinion has stripped counties of all protection in litigation. However, the opinion affirms the principle that § 11— 93-2 caps the liability of “governmental entities,” even with respect to claims against the officials of those entities in their official capacities. See also § 11-47-190. Further, we note that individual-capacity claims do not seek damages from the governmental entity. Finally, individual-capacity claims are subject to a State-agent immunity defense under Cranman. I see nothing in the opinion substantiating their contention that we have removed all protection in litigation from counties.

Other amici curiae appear to believe that we actually held that § 11-47-190 does not apply, which, they allege, would create disastrous results. This argument is completely without merit, as we explicitly state in note 5 that “we decline[d] to address this issue.” 75 So.3d at 99.

Because the application for rehearing and the supporting brief do not demonstrate that this Court overlooked or misapprehended any points of law or the facts, see Rule 40(b), Ala. R.App. P., I concur to overrule the application.

BOLIN, J., concurs. 
      
      . Although the trial court’s June 12, 2008, order did not purport to rule on Suttles's separate summary-judgment motion asserting State-agent immunity, the trial court nevertheless ruled that Homewood and Suttles’s immunity issue presented genuine issues of fact.
     
      
      . "Governmental entity” is defined in Ala. Code 1975, § 11-93-1(1), and includes both municipalities and counties.
     
      
      . See generally Prattville v. Corley, 892 So.2d 845 (Ala.2003), for a discussion of the difference in the scope of § 11-47-190 and § 11-93-2, which is not pertinent in the instant case.
     
      
      . Homewood and Suttles in their initial brief appear to cite Smithennan for the proposition that because the allegedly tortious acts that form the basis of Roy's claims were performed by Suttles while he was acting in the line and scope of his employment, Roy could sue Suttles only in his official capacity. In an amicus curiae brief, the City of Huntsville specifically argues that Smithennan held “that a public officer or employee defendant engaged in the performance of their official duties acts only within their official capacity and may only be sued in that capacity.” Smitherman, however, does not stand for this proposition. In that case, the trial court held that a county engineer sued in his individual capacity was entitled to a summary judgment because there was "no evidence” indicating that he "acted in his individual capacity with regard to the issues” presented in the complaint. 746 So.2d at 1003. We affirmed the trial court’s judgment because the appellant did not, on appeal, challenge the summary judgment in favor of the county engineer on the claim alleged against him in his individual capacity. Although this Court went on to state, in dicta, that the record supported the trial court’s judgment, this Court did not affirm on the basis of the rationale of the trial court's holding. Id. at 1004.
     
      
      . Suttles and Homewood also state in the "summary of the argument” and in the "conclusion" portions of their brief that the plain language of § 11-47-190 provides that no recovery may be had against an employee of a municipality in excess of $100,000, regardless of whether the employee is sued in his individual or official capacity. No explanation or elaboration on this argument is found in the initial brief, and no authority is cited supporting their interpretation of the Code section. Therefore, we decline to address this issue.
     
      
      . There is much discussion in the briefs — both on original submission and on rehearing— regarding a "concession” by Roy that Suttles was working in the line and scope of his duties as an officer at the time the incident occurred. The argument is that, because he was performing official duties, Suttles can be sued only in his official capacity. However, Homewood and Suttles never raised a cogent argument addressing this issue in their initial brief; instead, they offered the very limited argument based on Hale mentioned above. Additionally, whether Suttles's actions were taken while he was acting in the line and scope of his employment is an issue that is addressed in determining whether State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000), applies. Roy has not conceded that Suttles’s actions are protected by Cranman. The trial court has yet to undertake a Cranman analysis.
      In a related argument, some amici curiae maintain that Roy’s allegations support no claim of individual- and personal-capacity liability; instead, the argument goes, her allegations are limited to acts Suttles performed in his official capacity. This is not accurate. Roy alleged in her complaint, in response to the motion for a summary judgment, and on appeal that Suttles’s actions in driving the motorcycle violated both the Homewood Police Department’s internal policies as well as state law. Roy continues to make such allegations, arguing that they are to be examined when the Cranman analysis takes place.
     
      
      . Municipal officers are routinely sued in their individual capacities. See, e.g., Ex parte Dixon, 55 So.3d 1171 (Ala.2010) (police officer sued in individual capacity); City of Birmingham v. Brown, 969 So.2d 910 (Ala.2007) (city employee sued in individual capacity); Ex parte City of Tuskegee, 932 So.2d 895 (Ala. 2005) (police officers and municipal employees sued in individual capacities); Howard v. City of Atmore, 887 So.2d 201 (Ala.2003) (police officer and police chief sued in individual capacities); and Key v. City of Cullman, 826 So.2d 151 (Ala.Civ.App.2001) (police officer sued in individual capacity).
     
      
      . A consistent argument in the briefs of amici curiae is that in Smitherman this Court held that, as a matter of law, individual-capacity claims were not maintainable against a public official or employee who is sued for actions taken in the line and scope of official duties. Essentially, some of the amici curiae construe Smitherman as extending the per se rule in Cook that county commissioners cannot be sued in their individual capacities to any governmental employees acting in the line and scope of their employment. Because we did not hold in our opinion on original submission in this case that Smitherman contained such a per se rule for employees, many of the amici contend that the effect of our opinion is that such employees are subject to "unlimited individual liability” for actions taken in the line and scope of their employment. This is simply incorrect. Officers acting in the line and scope of their employment are protected by State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000). See Moore v. Crocker, 852 So.2d 89, 90 (Ala.2002) ("[Alabama Code 1975, § 6-5-338], by its terms, extends state-agent immunity to peace officers performing discretionary functions within the line and scope of their law-enforcement duties.”), and Hollis v. City of Brighton, 950 So.2d 300, 309 (Ala.2006) (formally incorporating § 6-5-338 into the Cranman rule governing State-agent immunity). If officers act outside their duties as described in Cranman, there is no immunity because the officers have, more or less, acted outside the line and scope of their employment. Our opinion on original submission in this case actually does not foreclose a per se rule forbidding individual-capacity actions; instead, we simply state that Homewood and Suttles’s authorities failed to demonstrate that such a rule existed.
     
      
      . For example, the Association of County Commissions of Alabama argues that, under general principles of agency law, Suttles should not be sued in his individual capacity. However, it was Homewood and Suttles’s duty to present this argument in their initial brief. Because this argument was not presented on appeal, our opinion does not address it, and resolution of that issue will have to wait until another day.
     