Ex parte Jackson County Board of Education.

164 So. 3d 532

• Court: Supreme Court of Alabama
• Decided: September 26, 2014
• Docket: 1130738
• Status: Published

Opinion

REL: 09/26/2014

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- 0649), 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 SPECIAL TERM, 2014 ____________________

1130738 ____________________

Ex parte Jackson County Board of Education

PETITION FOR WRIT OF MANDAMUS

(In re: D.C. Pruett Contracting Company, Inc.

v.

Jackson County Board of Education)

(Jackson Circuit Court, CV-13-900315)

STUART, Justice.

The Jackson County Board of Education ("the Board")

petitions this Court for a writ of mandamus directing the 1130738

Jackson Circuit Court to enter an order dismissing the

complaint of D.C. Pruett Contracting Company, Inc. ("Pruett

Contracting"), on the ground of sovereign immunity. We grant

the petition and issue the writ.

Facts and Procedural History

On April 25, 2012, Pruett Contracting submitted to the

Board a proposal for renovations to the Pisgah High School

gymnasium. On April 30, 2012, Kenneth Harding, the Jackson

County superintendent of education, executed a purchase order

authorizing Pruett Contracting to make certain renovations to

the gymnasium, totaling $231,309. Pruett Contracting began

renovating the gymnasium. On June 8, 2012, Harding received

a letter from the State of Alabama Building Commission stating

that "all work on the renovation of the Pisgah High School

gymnasium [was] to stop immediately" because the project had

not been submitted to or approved by the Building Commission.

On June 20, 2012, the Board instructed Pruett Contracting to

cease all work on the gymnasium. On July 22, 2012, Pruett

Contracting submitted an invoice to the Board for $91,268,

representing the work that had been performed.

2 1130738

On December 19, 2013, because it had not received payment

for the work it had performed in renovating the gymnasium,

Pruett Contracting sued the Board, alleging breach of contract

and unjust enrichment and seeking recovery of damages on

theories of quantum meruit, work and labor done, open account,

and account stated. On January 31, 2014, the Board moved the

court to dismiss the complaint, arguing that it is entitled to

sovereign immunity as to the claims alleged by Pruett

Contracting and that the court therefore lacked subject-matter

jurisdiction over the action. On March 17, 2014, Pruett

Contracting responded, arguing that this case involved a

protected property interest, that immunity was thus precluded,

and that the court had subject-matter jurisdiction over the

action. On the same day, Pruett Contracting amended its

complaint, naming as additional defendants the members of the

Board in their official capacities and Harding in his official

capacity as superintendent of education and asked for a writ

of mandamus or an injunction requiring the members of the

Board and Harding to pay the sums due and damages. On March

25, 2014, the circuit court denied the Board's motion to

3 1130738

dismiss. The Board then petitioned this Court for a writ of

mandamus.

Standard of Review

"As this Court has consistently held, the writ of mandamus is a

"'"drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court."'

"Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002)(quoting Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993)). '"In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review...."' Drummond Co. v. Alabama Dep't of Transp., 937 So. 2d 56, 57 (Ala. 2006)(quoting Ex parte Haralson, 853 So. 2d 928, 931 (Ala. 2003)).

"'In Newman v. Savas, 878 So. 2d 1147 (Ala. 2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:

"'"A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So. 2d 285,

4 1130738

288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So. 2d at 299."

"'878 So. 2d at 1148–49.'

"Pontius v. State Farm Mut. Auto. Ins. Co., 915 So. 2d 557, 563 (Ala. 2005). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. Drummond Co., 937 So. 2d at 58."

Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 20-21 (Ala.

2007).

Discussion

The Board contends that it has a clear legal right to the

dismissal of the action filed against it by Pruett Contracting

because, it says, that it is entitled to immunity from

liability under § 14, Ala. Const. 1901. See Ex parte

Tuscaloosa Cnty., 796 So. 2d 1100, 1103 (Ala. 2000)("Under

Ala. Const. of 1901, § 14, the State of Alabama has absolute

immunity from lawsuits. This absolute immunity extends to

arms or agencies of the state ...."). In support of its

argument, the Board cites Ex parte Hale County Board of

Education, 14 So. 3d 844, 848 (Ala. 2009), which held that

"[b]ecause county boards of education are local agencies of

5 1130738

the State, they are clothed in constitutional immunity from

suit."

Pruett Contracting recognizes the holding in Ex parte

Hale County Board of Education and its applicability to this

case, but it maintains that that decision was ill advised.

Pruett Contracting argues that this Court's determination that

a county board of education is entitled to sovereign immunity

is contrary to the United States Constitution, the

Constitution of Alabama, caselaw, and public policy. First,

Pruett Contracting argues that sovereign immunity must yield

to the Takings Clause of the United States Constitution,

Amendment V,1 and Art. I, § 10, of the United States

Constitution,2 in the context of contract rights created and

benefits received by a State agency. Next, although Pruett

Contracting recognizes that county boards of education are

charged by the legislature with supervising public education

within their respective counties, Pruett Contracting contends

1 Amendment V provides that private property shall not be taken for public use without compensation. 2 Article I, § 10, states: "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts ...." 6 1130738

that, because the Constitution of Alabama provides that "[t]he

public school fund shall be apportioned to [rather than among]

the several counties," see In re Opinion of the Justices No.

3, 215 Ala. 524, 111 So. 312 (1927), construing Article XIV,

§ 256, Ala. Const. 1901, and provides, in the provision for

the impeachment of county officials, see Article VII, § 175,

Ala. Const. 1901, for the impeachment of superintendents of

education, the authors of the Alabama Constitution intended

for county boards of education to be county agencies and not

"arms of the State."

This Court has cloaked members and employees of school

boards with § 14 immunity since its decision in Hickman v.

Dothan City Board of Education, 421 So. 2d 1257 (Ala. 1982).

In Ex parte Hale County Board of Education, this Court

unanimously decided that school boards are entitled to § 14

immunity in all cases. The basis for our decision in Ex parte

Hale County Board of Education is sound, and this decision has

been applied in numerous cases. See, e.g., Board of Sch.

Comm'rs of Mobile Cnty. v. Weaver, 99 So. 3d 1210, 1217 (Ala.

2012) ("[B]ecause the Board is an agency of the State of

Alabama it is entitled to absolute immunity under § 14 ...."),

7 1130738

Ex parte Montgomery Cnty. Bd. of Educ., 88 So. 3d 837, 842

(Ala. 2012) ("[T]he motion for a summary judgment based on §

14 immunity was due to be granted as to the Board ...."), and

Colbert Cnty. Bd. of Educ. v. James, 83 So. 3d 473, 479 (Ala.

2011) ("[T]he Board is absolutely immune under § 14 from the

state-law claims filed against it ...."). Pruett Contracting

does not present a persuasive reason to abandon our holding

that county boards of education are local agencies of the

State and, as such, are entitled to sovereign immunity.

Pruett Contracting's argument that sovereign immunity

should not protect the Board from a suit to enforce its

contractual obligations is also unpersuasive. In State

Highway Department v. Milton Construction Co., 586 So. 2d 872,

875 (Ala. 1991), this Court held that because an action

seeking payment under a contract was "in the nature of an

action to compel state officers to perform their legal

duties," the action was not barred by the doctrine of

sovereign immunity. See also Ex parte Alabama Dep't of

Transp., 978 So. 2d 17, 23 (Ala. 2007). As this Court

recognized in Ex parte Moulton, 116 So. 3d 1119, 1131-41 (Ala.

2013):

8 1130738

"'... [C]ertain causes of action are not barred by § 14:

"'"'There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So. 2d 677 (1971), we stated do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act ... seeking construction of a statute and its application in a given situation. 287 Ala. at 229–230, 250 So. 2d 677. Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity ....'"

"'Drummond Co. v. Alabama Dep't of Transp., 937 So. 2d 56, 58 (Ala. 2006)(quoting [Ex parte] Carter, 395 So. 2d [65,] 68 [(Ala. 1980)](emphasis omitted). ...'

"....

"... [T]his Court today restates the sixth 'exception' to the bar of State immunity under § 14 as follows:

"(6)(a) actions for injunction brought against State officials in their representative capacity where it is alleged

9 1130738

that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So. 2d 428 (1967), and (b) actions for damages brought against State officials in their individual capacity where it is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, subject to the limitation that the action not be, in effect, one against the State. Phillips v. Thomas, 555 So. 2d 81, 83 (Ala. 1989)."

These exceptions to sovereign immunity adequately address and

negate Pruett Contracting's concerns that, with regard to the

enforcement of contractual obligations, granting a county

board of education sovereign immunity is unjust.

Moreover, Pruett Contracting appears to recognize the

exceptions to sovereign immunity in our caselaw. Indeed,

Pruett Contracting maintains that the underlying action should

not be dismissed because, it says, the amendment to its

complaint adding as parties the proper officials in their

official capacities and requesting that they "perform their

legal duties" and pay Pruett Contracting as set forth in the

contract remedies its error in not naming those parties

initially. However, because the original complaint was filed

solely against the Board, the trial court lacked subject-

10 1130738

matter jurisdiction to entertain the subsequent amendment to

the original complaint. See Ex parte Alabama Dep't of

Transp., 6 So. 3d 1126 (Ala. 2008).

Furthermore, Pruett Contracting's argument that the

amended complaint should be treated as an initial filing under

Rule 3(a), Ala. R. Civ. P., is not properly before this Court.

Although Pruett Contracting appears to have made this argument

in a "rejoinder" to a response filed by the Board on April 10,

2014, the materials before us do not establish that Pruett

Contracting moved the trial court to consider the amended

complaint as an initial filing and that the trial court

refused to do so. Therefore, this contention is not properly

before us for consideration on this petition for a writ of

mandamus. See Daugherty v. Gulf Shores Motel, Inc., 292 Ala.

252, 292 So. 2d 454 (1974)(noting that issues presented for

review must be based on adverse rulings of the trial court).

Conclusion

The Board has established that it is entitled to

sovereign immunity and that the trial court did not have

subject-matter jurisdiction over this action; therefore, the

action must be dismissed. Ex parte Alabama Dep't of Transp.,

11 1130738

supra. Because the Board has demonstrated a clear legal right

to an order directing the Jackson Circuit Court to dismiss

Pruett Contracting's complaint against it, this Court grants

the Board's petition for a writ of mandamus and directs the

Jackson Circuit Court to dismiss Pruett Contracting's

complaint.

PETITION GRANTED; WRIT ISSUED.

Bolin, Parker, Main, Wise, and Bryan, JJ., concur.

Murdock and Shaw, JJ., concur in the result.

Moore, C.J., dissents.