The OVC
is a men's and women's collegiate athletic conference
that began in 1948. Since its inception, the OVC has been
governed by a Board of Presidents made up of the chancellors
and presidents of the OVC's member institutions.
Jacksonville State University ("JSU") became a
member institution in 2003. The OVC Constitution contains two
relevant provisions concerning resignation of membership from
the conference:
"4.5.3 Resignation of Membership. A member
institution desiring to terminate its Conference membership
shall provide written notice to the Conference president and
commissioner a minimum of two years prior to when the member
desires to cease Conference membership. Notification must be
made no later than the date of the annual OVC Spring
Meetings. The member institution providing notice of its
termination need not show cause for its termination to be
effective. A member institution providing the requisite
notice of its intention to resign from the Conference shall
pay a $750,000 exit fee plus forfeit both its
Conference year-end and OVC basketball pool distributions
during the final two years of OVC membership. A member
institution failing to provide the minimum two years required
written notice shall pay the Conference a sum of $1,000,000
in addition to forfeiting both its Conference year end and
OVC Basketball Pool distributions during the final year of
OVC membership. A member institution that resigns from the
Conference shall pay at least half of the required exit fee
at the time of departure from the Conference, no later than
June 30 of that year, and the remaining amount within
12-months of the initial payment, not later than June 30 of
the next year ...."
"4.5.4 Effect on Pro-Rata Share. A member who
resigns or is terminated from the Conference shall forfeit
its pro-rata share of the Conference Fund
Balance."[2]
In its complaint, the OVC alleged:
"25. Over time, OVC members, including [JSU], have voted
to amend Article 4.5.3. For example, in 2004 -- when [JSU]
was an OVC member -- the Board of Presidents voted to
increase the exit fee to $200,000. In 2011, [JSU] joined a
unanimous vote to add to Article 4.5.3 of the OVC
Constitution forfeiture of Conference distributions during
the final two years of membership. In 2013, [JSU] joined a
unanimous vote to increase the exit fee to $500,000 upon two
years' notice and $750,000 with less than two years'
notice. In 2015, [JSU] joined a unanimous vote to increase
the exit fee to its current amount. In 2017, [JSU] joined a
unanimous vote
to make 50% of the exit fee due immediately upon a
school's departure.
"....
"32. On January 26, 2021, [JSU's] Board of Trustees
unanimously approved Resolution 621 authorizing President
Killingsworth 'to explore opportunities for [JSU] to join
another NCAA Division I athletic conference and if, in the
exercise of his good faith discretion, he believes a new
conference affiliation is in the best interest of [JSU], to
enter into such agreement and to take the necessary steps for
[JSU] to resign its membership in the OVC.'
"33. On February 3, 2021, [JSU] informed the OVC that it
intended to resign its OVC membership effective June 30,
2021. ...
"....
"39. [JSU] did not pay the $500,000 portion of the exit
fee due on June 30, 2021. By letter dated June 29, 2021,
[JSU] stated it had no intention of paying the exit
fee."
In
addition to alleging that JSU had failed to pay the
conference-resignation fee described in Article 4.5.3 of the
OVC Constitution, the OVC also asserted that JSU
"owes $15,000 to the OVC for tickets that the OVC
provided [JSU] for the OVC's 2021 conference championship
basketball tournament. The $15,000 payment is for a ticket
buy-in that all OVC schools owe to help support the
conference championship event, regardless of whether they
have a team in the tournament. [JSU] received $15,000 in
tickets from the OVC and had both men's and women's
teams in the
tournament. A copy of the invoice to [JSU] is attached as
Exhibit C and incorporated herein by reference."
On
August 3, 2021, the OVC commenced this action in the Calhoun
Circuit Court against JSU, against Jones, individually and in
his capacity as chair of the JSU Board of Trustees, and
against Killingsworth, individually and in his capacity as
president of JSU. The OVC asserted two counts against JSU --
declaratory judgment and breach of contract -- that focused
solely on JSU's failure to pay the conference-resignation
fee described in Article 4.5.3 of the OVC Constitution. The
complaint also asserted one count against JSU -conversion --
that focused solely on the OVC's allegation that JSU had
failed to pay $15,000 for tickets received from the OVC for
the OVC's 2021 conference championship basketball
tournament. The complaint also asserted two counts against
JSU -- promissory estoppel and unjust enrichment -- that
incorporated both the conference-resignation fee and the
value of the tickets to the conference championship
basketball tournament as elements of damages. Finally, the
OVC asserted one count for "Injunctive Relief"
against JSU, Jones, and Killingsworth that stated:
"82. Jones and Killingsworth had the responsibility to
follow established procedures for the payment of [JSU's]
contractual obligations and debts due and owing, and also to
follow guidelines and established accounting procedures to
ensure that established obligations, such as those owed to
the OVC, were paid. Jones and Killingsworth failed to meet
these responsibilities or follow these guidelines and
established accounting procedures. These acts and omissions
constitute violations of ministerial, rather than
discretionary, duties.
"83. To the extent that these acts and omissions could
conceivably have been done while Jones and Killingsworth were
exercising a discretionary function, then the act or omission
was done willfully, maliciously, intentionally, in bad faith,
beyond the authority of Jones or Killingsworth, or under a
mistaken interpretation of the law. Otherwise, the acts or
omissions complained of herein involved ministerial acts that
were improperly performed by Jones or Killingsworth, or at
their direction.
"84. The OVC seeks a writ of mandamus, injunctive
relief, or other relief to which it may be equitably
entitled, including but not limited to:
"a. The enjoinment of [JSU] from leaving the OVC until
it has fulfilled its contractual and equitable obligations;
"b. an order compelling [JSU], Jones, and Killingsworth
to perform the ministerial duty of causing payment to issue
to the OVC.
"WHEREFORE, the premises considered, the OVC
respectively requests the equitable remedy of enjoining
[JSU], Jones, and Killingsworth to pay the debt owed and
compensatory damages in the amount to be determined by the
Court, plus pre-judgment interest and post-judgment interest
at the maximum allowable rates; attorneys' fees, costs,
and expenses, where permitted; and all such other and further
relief as the Court deems proper."
On
September 10, 2021, JSU, Jones, and Killingsworth filed a
joint motion to dismiss the OVC's complaint and a
memorandum in support thereof. With respect to the OVC's
claims against JSU, the defendants argued that the Alabama
State Board of Adjustment ("the BOA") had
"exclusive jurisdiction" over those claims. With
respect to any claims the OVC asserted against Jones and
Killingsworth in their official capacities, the defendants
argued that the claims were barred by State immunity under
§ 14 of the Alabama Constitution. See Ala. Const. 1901
(Off. Recomp.), Art. I, § 14 ("[T]he State of
Alabama shall never be made a defendant in any court of law
or equity."). With respect to any claims the OVC
asserted against Jones and Killingsworth in their individual
capacities, the defendants argued that the OVC had failed to
state a claim upon which relief could be granted, and they
maintained that the claims were barred by the doctrine of
State-agent immunity, which was restated by a plurality of
this Court in Ex parte Cranman, 792 So.2d 392 (Ala.
2000), and adopted by a majority of this Court in Ex
parte Butts, 775 So.2d 173 (Ala. 2000).
On
October 17, 2021, the OVC filed a response to the motion to
dismiss. Concerning its claims against Jones and
Killingsworth in their
official capacities, the OVC contended that State immunity
did not apply because the OVC sought to compel Jones and/or
Killingsworth to perform their legal duties or to perform
ministerial acts. Concerning its claims against Jones and
Killingsworth in their individual capacities, the OVC argued
that its allegations that Jones and Killingsworth had acted
willfully, maliciously, intentionally, in bad faith, beyond
their authority, or under a mistaken interpretation of law
"[t]o the extent that [their] acts and omissions could
conceivably have been done while Jones and Killingsworth were
exercising a discretionary function" were sufficient to
warrant discovery.
On
September 6, 2022, the circuit court held a hearing on the
joint motion to dismiss filed by JSU,...
