Rel: January 14, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 

300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other 

errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2022-2023

_________________________

SC-2022-0463

_________________________

Jennie Zinn and Christopher Zinn 

v. 

Ashley Till

Appeal from Montgomery Circuit Court

(CV-19-901199)

BRYAN, Justice.

Jennie Zinn and Christopher Zinn appeal from a judgment of the 

Montgomery Circuit Court dismissing their complaint against Ashley 
SC-2022-0463

2

Till. For the reasons explained below, we reverse the circuit court's 

judgment and remand this case for further proceedings.

Background

In their complaint, the Zinns allege the following. In October 2017, 

the Zinns filed an adoption petition in the Elmore Probate Court ("the 

probate court") concerning an unborn child ("the child"). The child was 

born later that month, and the probate court subsequently entered an 

interlocutory adoption decree. In November 2017, the Zinns filed an 

amended adoption petition, listing the child's name and providing the 

consent of the child's mother and purported father to the child's adoption.

On December 18, 2017, Till, an employee of the Alabama 

Department of Human Resources, submitted an acknowledgment letter 

to the probate court stating that there was no entry in the putative-father 

registry relating to the child. See generally § 26-10C-1, Ala. Code 1975. 

The next day, the probate court entered a final decree of adoption.

On January 25, 2018, Till submitted a corrected acknowledgment 

letter to the probate court, identifying an individual who was, in fact, 

listed in the putative-father registry regarding the child and stating that 

incomplete information had previously been provided "due to oversight
SC-2022-0463

3

and neglect." The next day, the probate court vacated the final decree of 

adoption based on the corrected acknowledgment letter.

In June 2019, the Zinns commenced this action against Till, "solely 

in her individual capacity," and fictitiously named defendants. The 

Zinns' complaint contained three counts. Count one alleged negligence. 

Count two alleged wantonness. Count three did not include a similar 

label, but, among other things, alleged that the defendants had "acted 

willfully, maliciously, in bad faith, beyond their authority or under a 

mistaken interpretation of the law ...." The Zinns' complaint sought 

awards of compensatory and punitive damages.

Till filed a motion to dismiss the Zinns' complaint. As grounds for 

her motion, Till argued that the Zinns' claims were barred by the doctrine 

of State-agent immunity and that Till's actions were not the proximate 

cause of the Zinns' injuries. The Zinns filed a response to the motion. On 

November 6, 2019, the circuit court entered an order granting Till's 

motion to dismiss regarding count one of the Zinns' complaint but 

denying the motion to dismiss regarding counts two and three. 

Till later filed an answer to the complaint. The parties thereafter 

proceeded to conduct discovery, and various discovery-related issues 
SC-2022-0463

4

arose and were addressed by the circuit court over the course of the next 

two years.

On October 22, 2021, Till filed a second motion to dismiss the Zinns' 

remaining claims. In support of that motion, Till argued only that the 

circuit court lacked jurisdiction over the Zinns' remaining claims 

because, Till said, those claims were barred by the doctrine of State 

immunity. The Zinns filed a response in opposition to that motion to 

dismiss. Till filed a reply to the Zinns' response.

After conducting a hearing, the circuit court entered an order on 

March 3, 2022, granting Till's motion to dismiss the Zinns' remaining 

claims.1 In so doing, the circuit court reasoned that the Zinns' claims 

were barred by the doctrine of State immunity and, alternatively, the 

doctrine of State-agent immunity. 

1The Zinns did not substitute parties in place of the fictitiously 

named parties set out in their complaint. Consequently, the circuit 

court's judgment disposing of all the claims asserted against Till was a 

final judgment. "Under Rule 4(f), [Ala. R. Civ. P.,] service on the other 

defendants must be completed, not merely attempted, before it can be 

said the pending action involves other active defendants." Owens v. 

National Sec. of Alabama, Inc., 454 So. 2d 1387, 1388 n.2 (Ala. 1984). See 

also Ex parte Harrington, 289 So. 3d 1232, 1237 n.5 (Ala. 2019)("A 

judgment that disposes of fewer than all the defendants is final when the 

defendants as to whom there has been no judgment have not yet been 

served with notice.").
SC-2022-0463

5

The Zinns filed a postjudgment motion requesting, among other 

things, that the circuit court enter an order clarifying that it had not 

treated Till's second motion to dismiss as a summary-judgment motion. 

The Zinns noted that, although the parties had conducted discovery, Till 

had not attached any evidentiary materials in support of her second

motion to dismiss. The circuit court thereafter entered an order stating, 

among other things: "To be clear, the Court granted [Till's m]otion to 

[d]ismiss based solely upon the pleadings and applicable law." The Zinns 

appealed.

Standard of Review

The parties generally agree regarding the appropriate standard of 

review. "On appeal, a dismissal is not entitled to a presumption of 

correctness." Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993). If the 

complaint states a claim "under a provable set of facts upon a cognizable 

theory of law ..., then it should not have been dismissed." Childs v. 

Mississippi Valley Title Ins. Co., 359 So. 2d 1146, 1146 (Ala. 1978). "In 

making this determination, this Court does not consider whether the 

plaintiff will ultimately prevail, but only whether she may possibly 

prevail." Nance, 622 So. 2d at 299. "In considering whether a complaint 
SC-2022-0463

6

is sufficient to withstand a motion to dismiss, this Court must accept the 

allegations of the complaint as true." Creola Land Dev., Inc. v. 

Bentbrooke Hous., L.L.C., 828 So. 2d 285, 288 (Ala. 2002).

Analysis

On appeal, the Zinns argue that the circuit court erred by 

dismissing their claims on immunity grounds. In response, Till appears 

to concede that, under the applicable standard of review, the circuit 

court's judgment should be reversed.

On appeal, Till asserts that her second motion to dismiss was 

predicated on the doctrine of State immunity, as set forth in this Court's 

decisions in Barnhart v. Ingalls, 275 So. 3d 1112 (Ala. 2018), and Ex parte 

Cooper, [Ms. 1200269, Sept. 30, 2021] ____ So. 3d ____ (Ala. 2021). 

Regarding claims like those asserted by the Zinns against Till, Till states 

that this Court's recent decision in Ex parte Pinkard, [Ms. 1200658, May 

27, 2022] ____ So. 3d ____ (Ala. 2022), overruled the applicable aspect of 

"Barnhart and its progeny ... holding that [s]overeign[, i.e., State, 

i]mmunity does not apply to ... individual-capacity claims." Till's brief at 

6. Therefore, Till appears to agree that, taking the allegations of the 
SC-2022-0463

7

Zinns' complaint as true at this juncture, State immunity does not clearly 

bar the Zinns' claims against her under this Court's current precedent.

Till also states: "[T]he issue of State-agent immunity is not 

jurisdictional and should be addressed in this matter upon a motion for

[a] summary judgment." Till's brief at 7. See Ex parte Alabama Dep't of 

Mental Health & Mental Retardation, 837 So. 2d 808, 813-14 (Ala. 

2002)("[A] motion to dismiss is typically not the appropriate vehicle by 

which to assert ... State-agent immunity[,] and ... normally the 

determination as to the existence of such a defense should be reserved 

until the summary-judgment stage, following appropriate discovery.").

As explained above, Till moved to dismiss count one of the Zinns' 

complaint based on State-agent immunity, and the circuit court cited 

State-agent immunity as an alternative ground for dismissing counts two 

and three of the complaint. On appeal, Till's statement that the issue of 

State-agent immunity should be resolved via a motion for a summary 

judgment does not distinguish between any of the counts set forth in the 

Zinns' complaint. Therefore, it appears that Till agrees that none of the 

counts set forth in the Zinns' complaint should have been dismissed based 

on the doctrine of State-agent immunity. Thus, insofar as the circuit 
SC-2022-0463

8

court's judgment dismissing each count of the complaint was based on 

the doctrine of State-agent immunity, the parties appear to agree that 

the judgment is due to be reversed regarding each count.

Accordingly, because the parties appear to agree concerning the 

appropriate disposition of this appeal, the circuit court's judgment 

dismissing the Zinns' complaint is hereby reversed regarding each count, 

and this case is remanded for further proceedings.

REVERSED AND REMANDED.

Wise, Sellers, Mendheim, and Stewart, JJ., concur.

Shaw, J., concurs in the result, with opinion.

Mitchell, J., concurs in the result, with opinion, which Parker, C.J., 

and Bolin, J., join.
SC-2022-0463

9

SHAW, Justice (concurring in the result).

I respectfully concur in the result. I write specially to note the 

following.

I do not believe that State immunity can never bar claims against 

State agents when such claims are merely pleaded in the form of 

individual-capacity claims. Ex parte Pinkard, [Ms. 1200658, May 27, 

2022] ___ So. 3d ___, ___ (Ala. 2022) (Shaw, J., concurring in the result) 

(stating that this Court may recognize when a "barred official-capacity 

claim for damages [is] masquerading as an individual-capacity claim"). 

Additionally, although apparently not applicable in this case, it may be 

possible to dispose of a claim subject to a State-agent-immunity defense 

by a motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P. See Ex parte 

Scannelly, 74 So. 3d 432, 439 (Ala. 2011) (noting that "some affirmative 

defenses ... may be readily apparent from the face of the complaint" and 

thus may be properly raised in a Rule 12(b)(6) motion to dismiss). 

Finally, although I do not read the main opinion as stating otherwise, the 

fact that an appellee concedes that a reversal is required, or does not 

defend a trial court's judgment, does not always mean that this Court 

must reverse that decision. See Reagan v. Alabama Alcoholic Beverage 
SC-2022-0463

10

Control Bd., 339 So. 3d 211, 217 (Ala. 2021) (noting that the appellant 

"has the burden of demonstrating that the trial court erred to reversal"), 

and Ex parte CTB, Inc., 782 So. 2d 188, 191 (Ala. 2000) (holding that this 

Court can "affirm the judgment of the trial court if that judgment is 

supported by any valid legal ground, even if that ground was not argued 

before ... this Court"). Nevertheless, I agree with the main opinion that 

the trial court's judgment is due to be reversed.
SC-2022-0463

11

MITCHELL, Justice (concurring in the result). 

I agree with the main opinion that the judgment should be reversed, 

but for a different reason. As the main opinion recognizes, the applicable 

standard of review is whether, based on the pleadings, the plaintiffs "may 

possibly prevail." Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 

1993). Instead of applying that standard, however, the main opinion 

concludes that reversal is proper because "the parties appear to agree 

concerning the appropriate disposition of this appeal." ___ So. 3d at 

___. In my view, the fact that the parties agree on a point of law does not 

establish that the point is correct. Cf. Boss Livery Co v. Griffith, 17 Ala. 

App. 474, 475, 85 So. 849, 849 (1920) ("Consent or agreement of the 

parties cannot oust a court of its appellate jurisdiction, or limit the 

principle of decision by excluding certain legal considerations which may 

be pertinent to the issue."). 

When we hinge the outcome of this case on the law -- not the parties' 

agreement about the law -- the case comes out the same. Accepting "the 

allegations of the complaint as true," Creola Land Dev., Inc. v. 

Bentbrooke Hous., L.L.C., 828 So. 2d 285, 288 (Ala. 2002) (emphasis 

omitted), Jennie and Christopher Zinn have shown that they may 
SC-2022-0463

12

possibly prevail. Nance, 622 So. 2d at 299. The Zinns properly asserted 

claims for negligence and wantonness, and it is not "'beyond a doubt that 

[they] can prove no set of facts entitling [them] to relief.'" Patton v. 

Black, 646 So. 2d 8, 10 (Ala. 1994) (citation omitted). Moreover, State 

immunity cannot bar a complaint against Ashley Till in her individual 

capacity unless the complaint substantively attacks a State financial or 

property right, which the complaint filed by the Zinns does not 

do. See Ex parte Pinkard, [Ms. 1200658, May 27, 2022] ___ So. 3d. ___ 

(Ala. 2022). Finally, the pleadings here are insufficient to assess whether 

State-agent immunity bars the Zinns' claims. See Ex parte Alabama 

Dep't of Mental Health & Mental Retardation, 837 So. 2d 808, 813-14 

(Ala. 2002). For these reasons, I agree that the Zinns' claims were 

improperly dismissed, and I concur in the result.

Parker, C.J., and Bolin, J., concur.