# Madeline Nelson v. Ken Megginson

> Supreme Court of Alabama · September 30, 2014 · 165 So. 3d 567

URL: https://www.frixlaw.com/law-library/cases/2738499

## Case

- **Full name:** Madeline NELSON Et Al. v. Ken MEGGINSON Et Al.
- **Court:** Supreme Court of Alabama
- **Decided:** September 30, 2014
- **Citations:** 165 So. 3d 567; 39 I.E.R. Cas. (BNA) 184; 2014 Ala. LEXIS 166; 2014 WL 4851504
- **Precedential status:** Published
- **Opinion:** Opinion by Murdock
- **Judges:** Murdock, Moore, Stuart, Parker, Shaw, Main, Bolin, Wise, Bryan
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

REL: 09/30/2014

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
____________________

1121301
____________________

Madeline Nelson et al.

v.

Ken Megginson et al.

Appeal from Mobile Circuit Court
(CV-12-901475)

MURDOCK, Justice.

Madeline Nelson and 25 other individuals formerly

employed as nontenured teachers or probationary classified

employees in the Mobile County Public School System ("the

school system") appeal from the dismissal by the Mobile
1121301

Circuit Court of their action against the members of the Board

of School Commissioners of Mobile County -- Ken Megginson,

Judy P. Stout, Reginald A. Crenshaw, Levon C. Manzie, and

William Foster -- and against the superintendent of the school

system, Martha Peek. We reverse and remand.

I. Facts and Procedural History

The plaintiffs were nontenured teachers or probationary

classified employees in the school system who were

terminated/nonrenewed from employment at the end of the

2007-2008 school year. In 2009, the plaintiffs filed an

action against the Board of School Commissioners of Mobile

County ("the Board"). That action was voluntarily dismissed

without prejudice three years later in light of this Court's

decision in Board of School Commissioners of Mobile County v.

Weaver, 99 So. 3d 1210 (Ala. 2012). In Weaver, this Court

concluded that in order for plaintiffs such as those in this

case to receive the relief they have requested, they must name

as defendants the individual members of the respective school

board in their representative or official capacities rather

than naming as a defendant the school board itself "because

the Board is an agency of the State of Alabama [and] it is

2
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entitled to absolute immunity under § 14 [of the Alabama

Constitution]." 99 So. 3d at 1217.

On July 13, 2012, the plaintiffs refiled their action in

Mobile Circuit Court, naming as defendants the members of the

Board and the superintendent of the school system. In their

complaint, the plaintiffs alleged that their employment was

terminated "pursuant to a reduction-in-force implemented by

Defendants in response to alleged financial constraints." The

plaintiffs further alleged that the failure to rehire them by

the conclusion of the following school year was a violation of

a written policy of the school system.

Section 16-1-33(b), Ala. Code 1975, provides that "[e]ach

board shall adopt a written reduction-in-force policy

consistent with Section 16–1–30[, Ala. Code 1975]. The policy

shall include, but shall not be limited to, layoffs, recalls,

and notifications of layoffs and recalls. The

reduction-in-force policy of the board shall be based on

objective criteria." Section 16-1-33 defines a "layoff" as

"[a]n unavoidable reduction in the work force beyond normal

attrition due to decreased student enrollment or shortage of

revenues." § 16-1-33(a)(3), Ala. Code 1975.

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Section 16-1-30, Ala. Code 1975, which is referenced in

§ 16-1-33(b), provides, in part:

"(b) The local board of education shall, upon
the written recommendation of the chief executive
officer, determine and establish a written
educational policy for the board of education and
its employees and shall prescribe rules and
regulations for the conduct and management of the
schools. Before adopting the written policies, the
board shall, directly or indirectly through the
chief executive officer, consult with the applicable
local employees' professional organization. Input by
the applicable professional organization shall be
made in writing to the chief executive officer. ...
The written policies, rules, and regulations, so
established, adopted, or promulgated shall be made
available to all persons affected and employed by
the board. Any amendments to the policies, rules,
and regulations shall be developed in the same
manner and furnished to the affected persons
employed by the board within 20 days after
adoption."

In December 2007, the Board adopted a policy pertaining

to reduction-in-force procedures: School Board Policy

No. 6.44 ("the policy"). The policy provides, in relevant

part:

"A reduction in force may take place when the
board determines that a financial exigency, program
change, serious natural disaster or other legitimate
business reason requires the reduction of personnel
through contract termination and approves acting
under this policy. Such a determination constitutes
the necessary cause for dismissal.

"....

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"Irrespective of a reduction in force, if a
non-tenured or probationary employee is non-renewed
in accordance with state law, this policy does not
apply to those individuals and in such
circumstances, there will be no right to recall
pursuant to this policy. This policy applies to
non-tenured and probationary employees only to the
extent that the individual would have been rehired
by the school the following year but for the
reduction in force. Otherwise, non-tenured and
probationary employees are not granted any retention
or recall rights by this policy except as provided
under state law. Unless there are no qualified
tenured or non-probationary employees for a
particular position, non-tenured and probationary
employees will be reassigned or terminated before
any tenured or non-probationary employee.

"Certified Employees

"....

"2. Non-Tenured Employees

"Again, this policy in no way gives non-tenured
employees a contractual right to employment. The
state law right to non-renew remains with the board
in all respects. However, if a reduction in force
is declared by the board and the principal of a
particular school designates a non-tenured employee
as an individual that would have been rehired but
for the reduction in force, that employee shall have
a one time recall right to a position for which he
or she is certified and legally qualified for one
calendar year from the effective date of his or her
termination or demotion that resulted only because
of a reduction in force IF there is no tenured
employee legally qualified based on state
certification and federal highly qualified standards
to teach in the position wherein an employee is to
be recalled. ...

5
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"....

"Support Employees

"....

"2. Probationary Employees

"Again, this policy in no way gives probationary
employees a contractual right to employment. The
state law right to non-renew remains with the board
in all respects. However, if a reduction in force
is declared by the board and the principal of a
particular school designates a probationary employee
as an individual that would have been rehired but
for the reduction in force, that employee shall have
a one time recall right to a position for which he
or she is certified and legally qualified for one
calendar year from the effective date of his or her
termination or demotion that resulted only because
of a reduction in force IF there is no non-
probationary employee qualified with the appropriate
experience and education for the position wherein an
employee is to be recalled."

(Capitalization in original; emphasis added.)

In their complaint, the plaintiffs alleged:

"Each of the Plaintiffs had a right to have been
recalled to employment with the School System during
the current year because the Defendants retained,
and/or hired new for the current school year,
teacher and non-teacher employees for positions
which should have been offered to the Plaintiffs
under Alabama Code § 16-1-33 and the specific
criteria of [the policy].

"13. Defendants had a non-discretionary, mandatory
duty to provide the Plaintiffs with the rights and
benefits conferred by Alabama Code § 16-1-33 and

6
1121301

[the policy]. They failed to do so with the result
that the Plaintiffs were denied their rights to
re-employment under said policy."

The plaintiffs attached a copy of the policy to their

complaint, which stated three counts against the defendants.

In "Count One," the plaintiffs sought a judgment declaring

that the defendants "failed and refused to accord the

Plaintiffs the rights and benefits to which they were entitled

under [the policy]." They also sought an injunction

"requiring the Defendants to offer each of the Plaintiffs the

next position for which they qualify under the standards of

[the policy]." In "Count Two," which was titled "Make Whole

Relief," the plaintiffs sought permanent injunctive relief

"requiring Defendants to provide the Plaintiffs the full

benefits of said statute and policy, including reinstatement

into the positions in which they had re-employment rights with

backpay, interest and restoration of progress toward tenure or

non-probationary status." "Count Three" was expressly labeled

a "Contract Claim" and stated: "Plaintiffs had a contract

right to the benefit of Alabama Code [1975,] § 16-1-33[,] and

Defendants' ... Policy 6.44, under which they were due to have

been re-employed during the 2008-09 school year."

7
1121301

On September 7, 2012, the defendants filed a motion to

dismiss the plaintiffs' complaint based on the affirmative

defense of the expiration of the statute of limitations. The

plaintiffs filed a response in opposition to the motion on

October 29, 2012. The circuit court held a hearing on the

motion on November 30, 2102.

On July 11, 2012, the circuit court entered an order

granting the defendants' motion to dismiss the complaint. The

order provided, in pertinent part:

"All of the Plaintiffs herein were non-renewed
from their employment at the end of the 2007-2008
school year. Even if they had a right of recall
under the Board's Reduction-in-Force Policy the
Plaintiffs' causes of action would have accrued, at
the very latest, no more than one calendar year from
the end of the 2007-2008 school year. That would
have been at the end of May 2009 or the beginning of
June 2009. This civil action was not brought until
July 13, 2012, over three (3) years from the last
date of the possible accrual of the Plaintiffs'
cause of action.

"This Court concludes that all of the
Plaintiffs' claims herein fall under either
§ 6-2-38(l) or § 6-2-38(m) of the 1975 Code of
Alabama. Under § 6-2-38(l) all actions for injury
to the person or rights of another not arising from
contract and not specifically enumerated must be
brought within two (2) years. Under § 6-2-38(m) all
actions for the recovery of wages, overtime,
damages, fees, or penalties accruing under laws
respecting the payment of wages, overtime, damages,

8
1121301

fees and penalties must be brought within two (2)
years.

"The essence of the Plaintiffs' argument in
opposition to the Defendants' motion to dismiss is
that their claims are in contract. The Court rejects
that contention. The specific language of [the
policy] attached to the Plaintiffs' complaint
specifically disclaims any contractual rights for
non-tenured employees and probationary employees,
such as the classified Plaintiffs herein. The
[policy] echoes the long established law that
probationary employees have no contractual rights to
continued employment, Lawrence v. Birmingham Board
of Education, 669 So. 2d 910 (Ala. Civ. App 1995),
rehearing denied.

"The case of McCord-Baugh v. Birmingham City
Board of Education, 894 So. 2d 672 (Ala. Civ. App.
2002), held that simply because a Board's policy and
procedure was involved does not automatically mean
that a contract claim is alleged. The Court of
Civil Appeals there held that a contract claim
arises only under appropriate circumstances. The
Court concludes that such circumstances are not
present herein due to the fact that these Plaintiffs
are either non-tenured teachers or probationary
employees and the specific words of [the policy] do
not provide them with any contractual rights
whatsoever. ... Furthermore, these Plaintiffs have
also not alleged any offer, acceptance or
consideration necessary to articulate a contractual
claim against any of these Defendants. Steiger v.
Huntsville City Board of Education, 653 So. 2d 975,
978 (Ala. 1995).

"This action was brought more than three (3)
years from the date of accrual. All of the
Plaintiffs' claims for mandamus, declaratory or
injunctive relief would be barred by the two (2)
year statute of limitations set out in § 6-2-38(l).
Finally, any of the Plaintiffs' claims for backpay

9
1121301

or other monetary relief would be barred by the same
two (2) [year] statute of limitations under
§ 6-2-38(m)."1

The plaintiffs filed a timely notice of appeal of the

circuit court's decision on August 7, 2013.

II. Standard of Review

"In Nance v. Matthews, 622 So. 2d 297, 299 (Ala.
1993), this Court set forth the standard of review
applicable to an order granting a motion to dismiss:

"'The appropriate standard of review under
Rule 12(b)(6)[, Ala. R. Civ. P.,] is
whether, when the allegations of the
complaint are viewed most strongly in the
pleader's favor, it appears that the
pleader could prove any set of
circumstances that would entitle her to
relief. Raley v. Citibanc of
Alabama/Andalusia, 474 So. 2d 640, 641
(Ala. 1985); Hill v. Falletta, 589 So. 2d
746 (Ala. Civ. App. 1991). In making this
determination, this Court does not consider
whether the plaintiff will ultimately
prevail, but only whether she may possibly
prevail. Fontenot v. Bramlett, 470 So. 2d
669, 671 (Ala. 1985); Rice v. United Ins.
Co. of America, 465 So. 2d 1100, 1101 (Ala.
1984). We note that a Rule 12(b)(6)
dismissal is proper only when it appears
beyond doubt that the plaintiff can prove

1
Because the policy was attached to the complaint and the
parties did not dispute its authenticity or content, the fact
that the circuit court considered the policy does not require
the conversion of the defendants' motion to dismiss into a
motion for a summary judgment under Rule 12(c), Ala. R. Civ.
P. See, e.g., Carpenter v. Mobile Cnty., 841 So. 2d 1237,
1239 (Ala. 2002).
10
1121301

no set of facts in support of the claim
that would entitle the plaintiff to
relief.'"

Beckerle v. Moore, 909 So. 2d 185, 186-87 (Ala. 2005).

III. Analysis

The plaintiffs primarily contend that the circuit court

erred in concluding that their claims were barred by the

applicable statute of limitations because, they say, they

stated a breach-of-contract claim, which has a six-year

statute of limitations. See § 6-2-34(9), Ala. Code 1975.

"This six-year period begins to run when the contract is

breached." AC, Inc. v. Baker, 622 So. 2d 331, 333 (Ala.

1993). As the trial court correctly observed, the breach

alleged here occurred, at the latest, at the conclusion of the

2008-09 school year, in May 2009. The plaintiffs filed this

action in July 2012, within the six-year limitations period

for a contract action.

The plaintiffs note that under this Court's precedent a

school-board policy can be the basis of a contract. The Court

of Civil Appeals, in Davis v. J.F. Drake State Technical

College, 854 So. 2d 1151, 1158 (Ala. Civ. App. 2002),

11
1121301

summarized this Court's holding in Belcher v. Jefferson County

Board of Education, 474 So. 2d 1063 (Ala. 1985), as follows:

"In Belcher, two nontenured teachers contended
that the county board of education had failed to
evaluate them as required by the evaluation policy
it had adopted. In that case, the board had adopted
a specific written policy governing the evaluations
of teachers. 474 So. 2d at 1066. The teachers
asserted breach-of-contract claims based on the
board's failure to follow its evaluation policy. The
trial court dismissed the teachers'
breach-of-contract claims, concluding that the
teachers had failed to state a claim upon which
relief could be granted. See Rule 12(b)(6), Ala. R.
Civ. P. Our supreme court reversed the dismissal of
the teachers' breach-of-contract claims, holding
that 'the Board of Education did not legally have to
follow any particular evaluation policy absent its
own self-imposed procedures. Having adopted a
policy, however, the Board is bound to follow it.'
Belcher, 474 So. 2d at 1068."

Specifically, the Belcher Court held that "the appellants have

alleged a breach of contract claim upon which relief could be

granted, on the basis of the Board of Education's adoption of

an evaluation policy, and alleged subsequent non-compliance

with that policy." Belcher, 474 So. 2d at 1068.

The plaintiffs argue that their action represents a

straightforward application of the principle established in

Belcher. As this Court subsequently has stated: "A board of

education must comply with the policies it adopts." Ex parte

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1121301

Board of Sch. Comm'rs of Mobile Cnty., 824 So. 2d 759, 761

(Ala. 2001). The plaintiffs contend that the defendants

violated the plaintiffs' right to recall provided in the

policy and that this violation constituted a breach of

contract.

The defendants counter that not every policy of a school

board creates a contract with school-system employees. They

note that the Court of Civil Appeals has stated that "a

public-school board's adoption of policies and procedures

known to and relied upon by an employee may, under appropriate

facts, give rise to implied contractual terms of employment

between the school board and the employee." McCord-Baugh v.

Birmingham City Bd. of Educ., 894 So. 2d 672, 677 (Ala. Civ.

App. 2002), rev'd in part on other grounds, 894 So. 2d 679

(Ala. 2004). The defendants contend in their appellate brief

that the "appropriate facts" "are not present herein due to

the fact that these Plaintiffs are either non-tenured teachers

or probationary employees and the specific words of [the

policy] do not provide them with any contractual rights

whatsoever." Specifically, the defendants refer to the fact

that the policy expressly states that "this policy in no way

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gives non-tenured employees a contractual right to employment"

and that "[t]he state-law right to non-renew remains with the

board in all respects." Likewise, the policy states that

"this policy in no way gives probationary employees a

contractual right to employment." The circuit court adopted

this argument in its order dismissing the complaint.

The defendants' argument ignores, however, the language

of the policy that follows these seemingly categorical

statements. In the portion of the policy that concerns non-

tenured employees, immediately following the reference to

"[t]he state law right to non-renew" remaining with the Board,

the policy provides:

"However, if a reduction in force is declared by the
board and the principal of a particular school
designates a non-tenured employee as an individual
that would have been rehired but for the reduction
in force, that employee shall have a one time recall
right to a position for which he or she is certified
and legally qualified for one calendar year from the
effective date of his or her termination ...."

Likewise, in the portion of the policy that concerns

probationary employees, immediately following the reference to

"[t]he state law right to non-renew" remaining with the Board,

the policy provides:

14
1121301

"However, if a reduction in force is declared by the
board and the principal of a particular school
designates a probationary employee as an individual
that would have been rehired but for the reduction
in force, that employee shall have a one time recall
right to a position for which he or she is certified
and legally qualified for one calendar year from the
effective date of his or her termination ...."

We see no way to read the above-quoted language in the

policy concerning nontenured and probationary employees other

than as an exception to the general statement that the policy

does not give such employees a contractual right to

employment.2 The exception arises when a reduction in force

is declared and the principal of a particular school

designates a nontenured employee or a probationary employee as

an individual who would have been rehired but for the

reduction in force. Under those conditions, a nontenured or

2
The exception is confirmed by language in the policy that
precedes the subsections addressing different types of school-
system employees:

"This policy applies to non-tenured and probationary
employees only to the extent that the individual
would have been rehired by the school the following
year but for the reduction in force. Otherwise,
non-tenured and probationary employees are not
granted any retention or recall rights by this
policy except as provided under state law."

(Emphasis added.)
15
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probationary employee possesses a "one time recall right ...

for one calendar year from the effective date of his or her

termination."

The defendants are correct that the general rule is that

"[n]on-tenured teachers may be reemployed or terminated at the

discretion of the board of education." Belcher, 474 So. 2d at

1066. As the Belcher Court noted in discussing the facts of

that case, however -- a case in which the plaintiffs were non-

tenured and probationary employees -- "the Board of Education

did not legally have to follow any particular evaluation

policy absent its own self-imposed procedures. Having adopted

a policy, however, the Board is bound to follow it." 474

So. 2d at 1068. The same would be true in this case should

the plaintiffs' allegations be proved: the Board did not have

to provide any contractual right to nontenured and

probationary employees in its reduction-in-force policy, but

having done so, it is bound by the policy.

The defendants in their appellate brief essentially

concede that language in the policy provides a recall right

for nontenured and probationary employees when they state that

"[o]nly in the highly contingent situation when a
Reduction-in-Force is declared by the Board, and the

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Principal of a particular school designates either
a non-tenured teacher or a probationary classified
employee as an individual who would have been
rehired but for the Reduction-in-Force, could the
Plaintiffs even state a right to recall under that
policy."

The defendants argue, however, that

"[n]owhere in the Plaintiffs' complaint do they
contend that the Principal of any of the schools
where these individuals were employed ever
designated them as one who would have been rehired
but for the Reduction-in-Force. The Plaintiffs'
failure to allege that a Principal designated them
as one who would have been rehired but for the
Reduction-in-Force prevents them from even stating
a contractual claim."

It is true that the plaintiffs in their complaint did not

specifically allege that the principals at the schools where

they were employed designated them as individuals who would

have been rehired but for the reduction in force. The

complaint does allege, however, that the "[p]laintiffs were

entitled to the benefit of [the policy]" and that

"[e]ach of the Plaintiffs had a right to have been
recalled to employment with the School System during
the current year because the Defendants retained,
and/or hired new for the current school year,
teacher and non-teacher employees for positions
which should have been offered to the Plaintiffs
under Alabama Code § 16-1-33 and the specific
criteria of [the policy]."

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Thus, the plaintiffs in their complaint generally claimed that

the policy provided a recall right to which they were

entitled. Of course, in order to prevail on such a claim, the

plaintiffs will face the burden of proving that they met the

conditions necessary to qualify for the recall right. As we

noted in the "Standard of Review," in evaluating a motion to

dismiss, a court views the allegations of the complaint most

strongly in the pleader's favor and such a motion should be

granted only when it appears beyond doubt that the plaintiff

can prove no set of facts in support of the claim that would

entitle the plaintiff to relief. It is conceivable that the

plaintiffs could prove a set of facts under which they had a

contractual right the defendants violated and for which they

are entitled to substantive relief.3

3
We are not presented here with an issue whether the "one-
calendar year" referenced in the policy and the "current year"
referenced in the above-quoted passage of the complaint are
one and the same. Our holding today is limited to the notion
that the specific language of the policy created a contract
between the parties and that the claims asserted by the
plaintiffs based on that contract are not barred on their face
by a statute-of-limitations defense; we do not have before us
any other issue as to the proper construction of the terms of
the contract or any other potential defenses thereto. Nor
should this opinion be construed as expressing any view as to
the availability of any particular form of relief as requested
in the complaint.
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Aside from the deference we must accord to the

allegations in the complaint, the defendants' argument

actually addresses potential weaknesses in the plaintiffs'

ability to prove their allegations, not whether their claim is

barred by the applicable statute of limitations. The

defendants acknowledged in their motion to dismiss the

complaint that "[t]he Defendants contend that the right of

recall does not apply to non-tenured and probationary

employees like the Plaintiffs herein. However, that fact is

not relevant for the disposition of this motion." In their

appellate brief, they reiterate that

"[t]he Defendants' assertion that the right of
recall does not apply to non-tenured and
probationary employees is not necessary to decide
the statute of limitations issue in this case. To
determine whether the statute of limitations defeats
these Plaintiffs' claims it is assumed the policy
applies to all of the Plaintiffs for that narrow
purpose alone."

Despite the above-quoted statements, the defendants

proceed to argue that certain facts preclude the application

of the policy to the plaintiffs. The defendants question

whether the plaintiffs can demonstrate that the policy should

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1121301

have been applied throughout the school system4 and, if so,

whether principals at the plaintiffs' respective schools

designated the plaintiffs as employees who would have been

rehired except for the reduction in force. Whether the

plaintiffs ultimately are able to prove those facts requires

factual development that is not before the court on a motion

to dismiss based on the applicability of the statute of

limitations.

The relevant issue here is whether, construing the

allegations in a light most favorable to the plaintiffs, as we

must, the complaint states a claim of breach of contract

subject to a six-year statute of limitations rather than the

two-year limitations period the circuit court applied to the

plaintiffs' complaint. As we have already stated, based on

the language in the policy and under the principle enunciated

in Belcher, the plaintiffs have stated a breach-of-contract

claim. Whether the plaintiffs can prove that claim is a

matter to be adjudicated by the circuit court.

4
According to the defendants in their brief, "[t]he
Reduction-in-Force was only declared for Central Office
employees, not individuals employed in schools like these
Plaintiffs." Whether this is true, and the ramifications for
the plaintiffs' claims if it is, are questions not before us.

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IV. Conclusion

We conclude that the plaintiffs stated a claim of breach

of contract and that therefore their claim was subject to a

six-year, rather than a two-year, statute of limitations.

Because the plaintiffs filed their action within the

applicable six-year limitations period for a contractual

claim, the circuit court erred in dismissing that claim based

on a statute-of-limitations defense. Accordingly, the circuit

court's dismissal of the plaintiffs' action is reversed, and

the cause is remanded for the continuation of the proceedings

in the circuit court.

REVERSED AND REMANDED.

Moore, C.J., and Stuart, Parker, Shaw, and Main, JJ.,

concur.

Bolin, Wise, and Bryan, JJ., dissent.

21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2738499. Public record. Not legal advice.