REL: 09/26/2014
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
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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
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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.
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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
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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,
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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
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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 ...."
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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 ...."),
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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):
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"'... [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
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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-
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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.,
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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.
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