Underwood v. Ala. State Bd. Of Educ.

• Decision Date: 04 December 2009
• Docket Number: 1071464.
• Citation: 39 So.3d 120
• Parties: Ollie UNDERWOOD et al.v.ALABAMA STATE BOARD OF EDUCATION et al.
• Court: Alabama Supreme Court

39 So.3d 120

Ollie UNDERWOOD et al.v.ALABAMA STATE BOARD OF EDUCATION et al.

1071464.

Supreme Court of Alabama.

Dec. 4, 2009.

COPYRIGHT MATERIAL OMITTED

Edward Still, Birmingham; James H. Anderson of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery; and Nancy E. Perry and Theron Stokes, Alabama Education Association, Montgomery, for appellants.

Roger L. Bates, Tracy R. Davis, and Stephen N. Fitts III of Hand Arendall, LLC, Birmingham, for appellees.

SHAW, Justice.¹

The plaintiffs below, Ollie Underwood, Peggy Mobley, and Gayle Gear, appeal from a judgment in favor of the defendants below, the Alabama State Board of Education (“the Board”); Governor Bob Riley, in his official capacity as president and member of the Board; and Randy McKinney, Betty Peters, Stephanie W. Bell, Ethel H. Hall, Ella Bell, David F. Byers, Jr., Sandra Ray, and Mary Jane Caylor, in their official capacities as members of the Board, based on allegations that the notice the defendants posted before a May 10, 2007, meeting of the Board violated Alabama's Open Meetings Act.² We hold that the issue presented by this appeal has become moot, and we dismiss the appeal.³

Facts and Procedural History

The plaintiffs' claims were tried pursuant to the following stipulated facts, as agreed to by the parties:

“10. Notice submitted by defendant Board to the Secretary of State's office advised the public that on March 2, 2007, defendant [B]oard would hold a special meeting for the following purpose: ‘to accept the resignation of the interim chancellor and consider the administration of the Alabama Department of Postsecondary Education and the Alabama College System. The meeting is open to the public.’ ...

“11. A press release summarizing the Board's official actions in a document entitled ‘Board Briefs' dated March 2, 2007, stated ‘the Board expects to search for a permanent Chancellor soon.’ ...

“12. As noted by attached Exhibit 8, on April 30, 2007, defendant Board submitted notice to the Secretary of State of the scheduling of special called work session for May 9, 2007 and provided a general description of the meeting as: ‘Special called work session to discuss the search for a permanent Chancellor.’

“13. With the exception of defendant Ella Bell, all individual defendants, in their official capacity, were present at the afternoon work session held on May 9, 2007.

“....

“36. No meeting subject to the Open Meetings Act occurred, in which the nomination of Chancellor Byrne was deliberated or voted upon, prior to the May 9, 2007, specially called work session.

“37. Plaintiffs are not seeking statutory penalties for alleged violations of the Open Meetings Act but are seeking attorney fees and costs.

“38. Public notice with respect to the May 9th specially called work session was submitted to the Secretary of State on April 30, 2007 at 4:56:40 PM, and published more than nine days in advance of the meeting....

“39. Public notice with respect to the May 9th specially called work session accurately stated the meeting date as ‘5/9/2007’ and the meeting time as ‘2:00 PM’ and identified the meeting-type as ‘special/called.’ ... Additionally, the meeting location was accurately listed, a contact number was provided, and the Alabama State Board of Education/Postsecondary Education was identified as the party who posted the notice....

“40. Public notice with respect to the May 9th specially called work session contained a general description of the nature and purpose of the meeting as a ‘[s]pecial called work session to discuss the search for a permanent chancellor.’ ...

“41. Public notice with respect to the May 10, 2007, special meeting was submitted to the Secretary of State on May 9th at 3:27:54 p.m., and was posted twenty-four hours in advance of the meeting time....

“42. Public notice with respect to the May 10, 2007, special meeting accurately stated the meeting date as ‘5/10/2007,’ and the meeting time as ‘3:30 PM.’ ... The meeting location was accurately listed, a contact number was provided, and the Alabama State Board of Education/Postsecondary Education was identified as the party who posted the notice....

43. Public notice with respect to the May 10, 2007, special meeting contained a general description of the nature and purpose of the meeting as follows:

“ ‘The purpose of this special meeting will be to accept the resignation of the interim chancellor and consider the administration of the Alabama Department of Postsecondary Education and The Alabama College System....’

“44. The Agenda with respect to the May 10, 2007 special meeting lists the items of business as ‘Acceptance of Resignation of Interim Chancellor’ and to ‘Consider Administration of the Department of Postsecondary Education and the Alabama College System.’ ...

“45. The general description contained in the public notice with respect to the May 10, 2007, special meeting contains the same description as the items of business contained in the Agenda for that meeting....”

At its May 10, 2007, meeting the Board appointed Bradley Byrne as chancellor of Alabama's two-year college system. The plaintiffs then filed the underlying declaratory-judgment action and also sought a temporary restraining order, preventing Byrne from assuming the position of chancellor. On May 22, 2007, the trial court entered an order denying the plaintiffs' request for a temporary restraining order. Thereafter, following the submission of the above stipulated facts and an accompanying brief by each side to the trial court, which heard the case without a jury, on June 17, 2008, the trial court entered an order in which it identified the sole issue before it as “whether the Board's publicly posted notice with respect to a specially called Board Meeting on May 10, 2007 complied with the requirements of the Open Meetings Act.” The trial court's order answered that question in the affirmative, concluding that “the Board complied with the Open Meetings Act” and denying the plaintiffs' requested relief. The plaintiffs appealed.

Standard of Review

“ ‘The trial court in this case applied the law to undisputed, stipulated facts. Our review therefore is de novo.

“ ‘ “When reviewing a case in which the trial court sat without a jury and heard evidence in the form of stipulations, briefs, and the writings of the parties, this Court sits in judgment of the evidence; there is no presumption of correctness. Old Southern Life Ins. Co. v. Williams, 544 So.2d 941, 942 (Ala.1989); Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990). When this Court must determine if the trial court misapplied the law to the undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. State Dep't of Revenue v. Garner, 812 So.2d 380, 382 (Ala.Civ.App.2001); see also Ex parte Graham, 702 So.2d 1215 (Ala.1997). In this case the trial court based its decision upon the stipulations, briefs, writings, and arguments of the parties' attorneys. No testimony was presented. Therefore, we must sit in judgment of the evidence, and the trial court ruling carries no presumption of correctness.” ’

“ American Res. Ins. Co. v. H & H Stephens Constr., Inc., 939 So.2d 868, 872-73 (Ala.2006)(quoting Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d 513, 516-17 (Ala.2003)).”

Nix v. McElrath, 952 So.2d 1107, 1110 (Ala.2006).

Discussion

The plaintiffs sought declaratory and injunctive relief and included a prayer that the trial court:

“1. Issue a declaratory judgment declaring:

“A. The actions of the defendants in failing and refusing to follow [the Board's] own policies as well as state law require[ ] entry of order invalidating the May 10, 2007 selection for Chancellor.

“B. The actions of the defendants in failing and refusing to follow [the Board's] policies are improper.

“C. The actions of the defendants in failing and refusing to follow [the Board's] own policies are arbitrary and capricious actions which constitute a violation of board policy and thus, a violation of Alabama law.

“2. Enter mandatory temporary, preliminary and permanent injunctions requiring defendants to withdraw, invalidate or rescind its action and reopen the process for all applicants [for the position of chancellor] for a period of time greater than 30 days.

“3. Enter an Order requiring that all costs incurred in this case be taxed against the defendants.

“4. Enter an Order enjoining the defendants from taking any further action of placement of Bradley Byrne in the Chancellor position.

“5. That attorney's fees and costs be awarded; and,

“6. Plaintiffs further pray that they be awarded any other equitable or further relief and any other and further orders and judgments be entered as to which they may be entitled under the facts as alleged above.”

The plaintiffs stipulated below that “[they are] not seeking statutory penalties for alleged violations of the Open Meetings Act but are seeking attorney fees and costs....” They state on appeal that they “seek declaratory relief, not removal of Chancellor Byrne,” ⁴ and that “the ultimate remedy ... will be decided by the Circuit Court upon remand.” (Plaintiff's reply brief, at p. 5.) However, as we have historically done, we examine the language of the complaint to determine the true nature of the plaintiffs' claims. See Rutley v. Country Skillet Poultry Co., 549 So.2d 82, 84 (Ala.1989) (“A court must look to the allegations in the body of the complaint in order to determine the nature of a plaintiff's cause of action.”).

“The substance of the plaintiff's allegations control, not the effort given by the plaintiff to style the claims throughout litigation. Bailey v. Faulkner, 940 So.2d 247, 253 (Ala.2006) (‘Faulkner places great reliance on the fact that he has been careful to style his claims throughout this litigation as negligence and wantonness claims, rather than as an alienation-of-affections claim. However, “[t]his Court has always looked to substance over form.” Southern

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