Supreme Court Reviews Issue not Briefed

In Ex parte Auburn University, No. 1070174 (Ala. Oct. 3, 2008), the Alabama Supreme Court considered whether an exception to the sovereign immunity defense applied in the case even though the plaintiffs did not raise the issue in their writ petition concerning the denial of a summary judgment motion.  "The plaintiffs do not include in the argument section of their brief a description of how Dr. Smith acted fraudulently . . . so as to remove him from the protection afforded him by State-agent immunity. . . . Therefore, it could be assumed that the plaintiffs have abandoned their contentions on appeal as they relate to Dr. Smith’s claim of State-agent immunity.   However, because the trial court found that a genuine issue of material fact existed" concerning the immunity exception, the Court addressed the issue.