Bessemer Bd. of Educ. v. Tucker

• Decision Date: 20 June 2008
• Docket Number: 2070390.
• Citation: 999 So.2d 957
• Parties: BESSEMER BOARD OF EDUCATION v. Joe L. TUCKER, Jr.
• Court: Alabama Court of Civil Appeals

999 So.2d 957

BESSEMER BOARD OF EDUCATION v. Joe L. TUCKER, Jr.

2070390.

Court of Civil Appeals of Alabama.

June 20, 2008.

David A. Sullivan, Birmingham, for appellant.

Tom Dutton and Elisabeth French of Pittman, Dutton, Kirby & Hellums, P.C., Birmingham, for appellee.

THOMPSON, Presiding Judge.

On February 28, 2005, Joe L. Tucker, Jr., sued the Bessemer Board of Education ("the Board") and several of its members, both individually and officially, in the Jefferson Circuit Court, Bessemer Division ("the trial court"), asserting claims of breach of contract and fraud. Tucker, the Board's former attorney, alleged that when the Board terminated its attorney-client relationship with him, it had failed to pay $49,747 in fees for his legal services. The defendants moved for a summary judgment, arguing that they were immune from suit pursuant to Art. 1, § 14, Ala. Const.1901. Tucker also moved for a summary judgment, arguing that no genuine issues of material fact existed and that he was entitled to be paid the $49,747 in fees.

The trial court entered a summary judgment in favor of the board members as to Tucker's breach-of-contract claim and his fraud claim to the extent that it was asserted against them in their official capacities. The fraud claim asserted against the board members in their individual capacities remained pending. The trial court dismissed the fraud claim against the Board. On August 18, 2005, the trial court entered a summary judgment for Tucker on his breach-of-contract claim against the Board and awarded Tucker $49,747 in damages. The trial court certified its August 18, 2005, judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.

The Board appealed the August 18, 2005, summary judgment to this court, arguing that it was entitled to immunity under Art. I, § 14, Ala. Const.1901. While that appeal was pending, Tucker filed a process of garnishment with the trial court, seeking to recover on the judgment; however, Tucker subsequently withdrew the garnishment. On July 7, 2006, this court affirmed the trial court's judgment without an opinion, pursuant to Rule 53(a)(1) and (a)(2)(C) and (F), Ala. R.App. P. See Bessemer Bd. of Educ. v. Tucker (No. 2041105, July 7, 2006), 999 So.2d 1013 (Ala.Civ.App.2006)(table). Our supreme court denied the Board's subsequent petition for a writ of certiorari on October 13, 2006. See Ex parte Bessemer Bd. of Educ. (No. 1051703, Oct. 13, 2006), 999 So.2d 597 (Ala.2006)(table).

On November 6, 2006, Tucker petitioned the trial court for a writ of mandamus directing the Board to pay him the $49,747 owed on the August 18, 2005, judgment. On November 8, 2006, the trial court granted Tucker's petition and ordered the Board to pay the judgment, plus interest. The Board appealed the November 8, 2006, order to our supreme court, which remanded the matter to the trial court for additional proceedings regarding the petition for the writ of mandamus. On March 20, 2007, the trial court again granted Tucker's petition for a writ of mandamus and ordered the Board to pay the judgment, plus interest. After it was reinvested with jurisdiction, our supreme court subsequently transferred the appeal to this court due to a lack of subject-matter jurisdiction.

On appeal, the Board argues that it is entitled to immunity under Art. I, § 14, Ala. Const.1901. Once again, the Board argues that because, it says, it is entitled to immunity, the trial court's August 18, 2005, judgment against it on Tucker's breach-of-contract claim is in error. Also, the Board argues that, based on its alleged immunity under § 14, the trial court had no authority to issue a writ of mandamus against it. We will address the argument pertaining to the August 18, 2005, judgment first.

Tucker maintains that this court's July 7, 2006, affirmance of the August 18, 2005, judgment is the law of the case and that we should not allow the Board to raise the issue of its alleged immunity in this subsequent appeal.

"Generally, the law-of-the-case doctrine provides that when a court decides upon a rule of law, that rule should continue to govern the same issues in subsequent stages in the same case. The purpose of the doctrine is to bring an end to litigation by foreclosing the possibility of repeatedly litigating an issue already decided. See Murphy v. FDIC, 208 F.3d 959 (11th Cir.2000); see, also, Blumberg v. Touche Ross & Co., 514 So.2d 922 (Ala.1987)."

Ex parte Discount Foods, Inc., 789 So.2d 842, 846 n. 4 (Ala.2001).

Our supreme court has applied the law-of-the-case doctrine as a bar to subsequent appeals regarding the same issue. See, e.g., Robbins v. Sanders, 927 So.2d 777, 784 (Ala.2005)("Our discussion and determination of these issues in [the first appeal] foreclose their attempted resurrection by Robbins on this appeal, because of the bar created by the doctrine of the law of the case."). Rule 53, Ala. Rule App. P., which grants this court the authority to affirm a judgment or order without a written opinion, provides in subsection (d):

"An order of affirmance issued by the Supreme Court or the Court of Civil Appeals by which a judgment or order is affirmed without an opinion . . . shall not be used by any court within this state, except for the purpose of establishing the application of the doctrine of law of the case, res judicata, collateral estoppel, double jeopardy, or procedural bar."

(Emphasis added.) This court's July 7, 2006, no-opinion affirmance of the August 18, 2005, judgment cited Rule 53(a)(2)(C) and (F), thus indicating this court's conclusions that "the evidence would support those findings that would have been necessary to support the judgment," Rule 53(a)(2)(C), and "that the judgment . . . was entered without an error of law," Rule 53(a)(2)(F). Furthermore, this court cited Palmer v. Perry County Board of Education, 496 So.2d 2 (Ala.1986); Belcher v. Jefferson County Board of Education, 474 So.2d 1063 (Ala.1985); and Enterprise City Board of Education v. Miller, 348 So.2d 782 (Ala.1977). In Belcher and Palmer, our supreme court discussed whether county boards of education were immune under § 14. In Miller, the supreme court discussed the similarities between city and county boards of education. It is therefore apparent that, in affirming the August 18, 2005, judgment, this court considered the Board's substantive argument on appeal regarding its purported immunity under § 14. Accordingly, this court's July 7, 2006, no-opinion affirmance of the trial court's August 18, 2005, judgment may establish the law of the case as to the Board's argument that it is immune.

"However, the law-of-the case doctrine does not in all circumstances require rigid adherence to rulings made at an earlier stage of a case. The doctrine directs a court's discretion; it does not limit a court's power. The law-of-the-case doctrine is one of practice or court policy, not of inflexible law, and it will be disregarded when compelling circumstances call for the redetermination of a point of law on a prior appeal; and this is particularly true when the court is convinced that its prior decision is clearly erroneous or where an intervening or contemporaneous change in the law has occurred by an overruling of former decisions or when such a change has occurred by new precedent established by controlling authority."

Ex parte Discount Foods, Inc., 789 So.2d at 846 n. 4. The Board maintains that the question of its immunity under § 14 is jurisdictional in nature and may be raised at any point in the litigation, even after a previous appeal. We have found authority to support that proposition. In Southern Railway Co. v. Bailey, 224 Ala. 456, 140 So. 408 (1932), the railway company invited our supreme court to address whether the action should be removed to federal court, a question that had been considered and decided in an earlier appeal. Our supreme court stated: "Since the matter goes to the jurisdiction of the trial court, it may properly be reconsidered at any stage of the proceedings." Bailey, 224 Ala. at 457, 140 So. at 409. In light of the discretion recognized by our supreme court in Discount Foods, and its holding in Bailey, it seems prudent that we once again consider the Board's argument that § 14 entitled it to immunity from the August 18, 2005, judgment. However, as in Bailey, "[w]e reaffirm our holding on [the] former appeal." 224 Ala. at 457, 140 So. at 409.

In Belcher v. Jefferson County Board of Education, supra, our supreme court explained § 14 sovereign immunity as it relates to county boards of education.

"The sovereign immunity of the State is provided for in our Constitution as follows: `[T]he State of Alabama shall never be made a defendant in any court of law or equity.' Ala. Const. art. I, § 14. In Hutt v. Etowah County Board of Education, 454 So.2d 973 (Ala. 1984), we reaffirmed the established position that county boards of education are arms of the State as far as immunity is concerned:

"`County boards of education are not agencies of the counties, but local agencies of the state, charged by the legislature with the task of supervising public education within the counties. See §§ 16-8-8, -9, Code 1975; Clark v. Jefferson County Board of Education, 410 So.2d 23, 27 (Ala. 1982). They execute a state function —not a county function—namely, education. Sims v. Etowah County Board of Education, 337 So.2d [1310] at 1317 [(Ala.1976)] (Faulkner, J., dissenting), citing Alabama Constitution, Art. 12 § 256. Therefore, they partake of the state's immunity from suit to the extent that the legislature authorizes. Sims v. Etowah County Board of Education, 337 So.2d at 1316; Enterprise City Board of Education[ v. Miller], 348 So.2d [782] at 783 [(Ala.1977)]. [Footnote omitted.]'

"454 So.2d at 974. In Hutt we said the trial judge was correct in granting summary judgment in favor of a board of education accused of failure to furnish safe gymnasium facilities, because boards of education are...