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.




                                 12
