Ohio Valley Conference v. Randall Jones, individually and in his official capacity as Chair of the Board of Trustees of Jacksonville State University, and Don C. Killingsworth, Jr., individually and in his official capacity as President of Jacksonville State University

Rel: May 19, 2023

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) 229-0650), 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

OCTOBER TERM, 2022-2023

_________________________

SC-2022-0930

_________________________

Ohio Valley Conference

v.

Randall Jones, individually and in his official capacity as

Chair of the Board of Trustees of Jacksonville State University,

and Don C. Killingsworth, Jr., individually and in his official

capacity as President of Jacksonville State University

Appeal from Calhoun Circuit Court

(CV-21-900312)

MENDHEIM, Justice.

The Ohio Valley Conference ("the OVC") appeals from the judgment

dismissing its official-capacity and individual-capacity claims against

SC-2022-0930

Randall Jones, the Chair of the Board of Trustees of Jacksonville State

University, and Don C. Killingsworth, Jr., the President of Jacksonville

State University.1 We affirm in part, reverse in part, and remand.

I. Facts

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

1As we will explain more fully in the rendition of the facts,

Jacksonville State University was originally designated as an appellee in

this appeal. However, on November 21, 2022, the OVC filed a "Motion for

Voluntary Dismissal of Jacksonville State University as Appellee." On

December 1, 2022, this Court granted that motion, dismissing

Jacksonville State University as an appellee.

2

SC-2022-0930

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

2Article 4 of the OVC Constitution is attached as an exhibit to the

OVC's complaint. Under Rule 10(c), Ala. R. Civ. P., documents attached

to and referenced in the complaint become a part of the pleading. See,

e.g., Ex parte Price, 244 So. 3d 949, 955 (Ala. 2017) (noting that

"[e]xhibits attached to a pleading become part of the pleading," citing

Rule 10(c)).

3

SC-2022-0930

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

4

SC-2022-0930

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

5

SC-2022-0930

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."

6

SC-2022-0930

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

7

SC-2022-0930

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, Jones, and Killingsworth. At the

conclusion of that hearing, the circuit court stated:

"THE COURT: Okay. I have read all of this. I know this

is a very important case to all of you, but I am afraid after we

spend a lot of time and a lot of money, I am going to reach the

same decision on the Rule 56[, Ala. R. Civ. P., summary-

judgment motion]. I just don't know -- it [immunity] is such a

high, high burden. I don't know how you are going to overcome

it.

"So I am going to grant the Motion to Dismiss, and I

wish you well in the Board of Adjustments."

8

SC-2022-0930

On the same day, September 6, 2022, the circuit court entered a judgment

confirming that it was granting the motion to dismiss: "This case came

before the Court on this date for hearing upon Defendants' Motion to

Dismiss. After hearing and in consideration of the applicable law, this

case is hereby dismissed."

On October 20, 2022, the OVC appealed the circuit court's judgment

with respect to all the defendants. On November 21, 2022, the OVC filed

with this Court a "Motion for Voluntary Dismissal of Jacksonville State

University as Appellee." In that motion, the OVC stated that it

"no longer wishes to appeal the trial court's dismissal of its

suit as it relates to JSU. The claim against JSU is properly

within the jurisdiction of the Alabama Board of Adjustment

('BOA') and has been properly asserted and is pending there

to be activated on resolution of this litigation.

"….

"4. OVC filed the underlying lawsuit on August 3, 2021.

Thereafter, on June 28, 2022, OVC also filed a claim against

JSU with the [BOA] by making a protective filing given the

BOA's one-year statute of limitations on claims.

"5. The claim is pending in the BOA with Claim No. 244-

2022101. On June 28, 2022, the BOA advised that OVC's

claim is being held in abeyance pending resolution of this

litigation 'which relates to the same facts from which this

claim arises.'

9

SC-2022-0930

"6. Pursuant to BOA Rule 22(b), OVC's claim will not be

scheduled for hearing while litigation pertaining to the same

facts is pending in the Alabama courts. The BOA is expected

to allow its claims process to be activated upon the resolution

of this litigation.

"7. OVC seeks dismissal of JSU only from this appeal

because OVC's claim against JSU is properly within the

jurisdiction of the BOA. Hawkins v. Bd. of Adjustment, 242

Ala. 547, 7 So. 2d 775 (1942)."

On December 1, 2022, this Court granted the OVC's motion,

dismissing JSU as an appellee. Consequently, only the judgment insofar

as it dismisses the claims asserted against Jones and Killingsworth in

their official and individual capacities is before us for review in this

appeal.

II. Standard of Review

As we noted in the rendition of the facts, the OVC asserts claims

against Jones and Killingsworth in their official and individual

capacities. In the circuit court, Jones and Killingsworth contended that

the official-capacity claims were barred by State immunity; they argued

that the individual-capacity claims failed to state a claim upon which

relief could be granted and that they were barred by State-agent

immunity.

10

SC-2022-0930

When State immunity applies, "it 'divests the trial courts of this

State of subject-matter jurisdiction.' " Butler v. Parks, 337 So. 3d 1178,

1182 (Ala. 2021) (quoting Alabama State Univ. v. Danley, 212 So. 3d 112,

127 (Ala. 2016)). " 'We review de novo whether the trial court had subject-

matter jurisdiction.' " Taylor v. Paradise Missionary Baptist Church, 242

So. 3d 979, 986 (Ala. 2017) (quoting Solomon v. Liberty Nat'l Life Ins.

Co., 953 So. 2d 1211, 1218 (Ala. 2006)).

" ' "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 [it] to relief. In making this determination,

this Court does not consider whether the plaintiff will

ultimately prevail, but only whether [it] may possibly prevail.

We note that a Rule 12(b)(6) dismissal is proper 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." ' "

Ex parte Troy Univ., 961 So. 2d 105, 108 (Ala. 2006) (quoting Knox v.

Western World Ins. Co., 893 So. 2d 321, 322 (Ala. 2004), quoting in turn

Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)). "A ruling on a

motion to dismiss is reviewed without a presumption of correctness."

Newman v. Savas, 878 So. 2d 1147, 1148-49 (Ala. 2003).

11

SC-2022-0930

III. Analysis

We will first address the official-capacity claims, and we will then

address the individual-capacity claims.

A. Official-Capacity Claims Against Jones and Killingsworth

The OVC contends that the circuit court erred in concluding that

its official-capacity claims against Jones and Killingsworth were barred

by State immunity because, it says, those claims fall within so-called

"exceptions" to State immunity that do not constitute claims against the

State.

"The wall of immunity erected by § 14 is nearly

impregnable. Sanders Lead Co. v. Levine, 370 F. Supp. 1115,

1117 (M.D. Ala. 1973); Taylor v. Troy State Univ., 437 So. 2d

472, 474 (Ala. 1983); Hutchinson v. Board of Trustees of Univ.

of Alabama, 288 Ala. 20, 24, 256 So. 2d 281, 284 (1971). This

immunity may not be waived. Larkins v. Department of

Mental Health & Mental Retardation, 806 So. 2d 358, 363

(Ala. 2001) ('The State is immune from suit, and its immunity

cannot be waived by the Legislature or by any other State

authority.'); Druid City Hosp. Bd. v. Epperson, 378 So. 2d 696

(Ala. 1979) (same); Opinion of the Justices No. 69, 247 Ala.

195, 23 So. 2d 505 (1945) (same); see also Dunn Constr. Co. v.

State Bd. of Adjustment, 234 Ala. 372, 175 So. 383 (1937).

'This means not only that the state itself may not be sued, but

that this cannot be indirectly accomplished by suing its

officers or agents in their official capacity, when a result

favorable to plaintiff would be directly to affect the financial

status of the state treasury.' State Docks Comm'n v. Barnes,

225 Ala. 403, 405, 143 So. 581, 582 (1932) (emphasis added);

12

SC-2022-0930

see also Southall v. Stricos Corp., 275 Ala. 156, 153 So. 2d 234

(1963)."

Patterson v. Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002).

" 'Section 14 prohibits actions against state officers in

their official capacities when those actions are, in effect,

actions against the State. Lyons v. River Road Constr., Inc.,

858 So. 2d 257, 261 (Ala. 2003); Mitchell v. Davis, 598 So. 2d

801, 806 (Ala. 1992). "In determining whether an action

against a state officer or employee is, in fact, one against the

State, [a] [c]ourt will consider such factors as the nature of the

action and the relief sought." Phillips v. Thomas, 555 So. 2d

81, 83 (Ala. 1989). Such factors include whether "a result

favorable to the plaintiff would directly affect a contract or

property right of the State," Mitchell, 598 So. 2d at 806,

whether the defendant is simply a "conduit" through which

the plaintiff seeks recovery of damages from the State, Barnes

v. Dale, 530 So. 2d 770, 784 (Ala. 1988), and whether "a

judgment against the officer would directly affect the financial

status of the State treasury," Lyons, 858 So. 2d at 261.

Moreover, we note that claims against state officers in their

official capacity are "functionally equivalent" to claims

against the entity they represent. Hinson v. Holt, 776 So. 2d

804, 810 (Ala. Civ. App. 1998); see also McMillian v. Monroe

County, Ala., 520 U.S. 781, 785 n.2, 117 S.Ct. 1734, 138

L.Ed.2d 1 (1997) (noting that a suit against a governmental

officer in his official capacity is the same as a suit against the

entity of which the officer is an agent); Yeldell v. Cooper Green

Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir. 1992) (holding that

official-capacity suits generally represent only another way of

pleading an action against an entity of which an officer is an

agent). ...' "

Ex parte Wilcox Cnty. Bd. of Educ., 285 So. 3d 765, 776 (Ala. 2019)

(quoting Haley v. Barbour Cnty., 885 So. 2d 783, 788 (Ala. 2004)).

13

SC-2022-0930

" 'Alabama A & M University is an instrumentality of

the State of Alabama and, thus, is absolutely immune from

suit under § 14.' Matthews v. Alabama Agric. & Mech. Univ.,

787 So. 2d 691, 696 (Ala. 2000). Accord Ex parte Craft, 727

So. 2d 55, 58 (Ala. 1999); Rigby v. Auburn Univ., 448 So. 2d

345, 347 (Ala. 1984); Taylor v. Troy State Univ., 437 So. 2d

472, 474 (Ala. 1983). Thus, actions against officers, trustees,

and employees of state universities in their official capacities

are likewise barred by § 14."

Alabama Agric. & Mech. Univ. v. Jones, 895 So. 2d 867, 873 (Ala. 2004).

Jones and Killingsworth rely upon the principles provided in the

above-quoted cases in arguing that the OVC's official-capacity claims

against them are functionally equivalent to claims against the State

because the OVC is using Jones and Killingsworth as conduits for forcing

JSU to pay the conference-resignation fee described in Article 4.5.3 of the

OVC Constitution and to reimburse the OVC $15,000 for tickets JSU

received from the OVC for the OVC's 2021 conference championship

basketball tournament. In short, they contend that the OVC is

attempting to accomplish indirectly by suing Jones and Killingsworth in

their official capacities what the OVC cannot do directly by suing JSU

because a result favorable to the OVC would affect the financial status of

the state treasury.

14

SC-2022-0930

The OVC concedes that it cannot sue JSU in the courts of this state

for monetary relief; indeed, that is why it dismissed the appeal of the

judgment insofar as it dismissed OVC's claims against JSU on the ground

that those claims are "properly within the jurisdiction of the Alabama

[State] Board of Adjustment." However, the OVC insists that its official-

capacity claims against Jones and Killingsworth are not protected by § 14

of the Alabama Constitution.

" '[C]ertain actions are not barred by § 14. There

are six general categories of actions that 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; (4) actions brought against State

officials under the Declaratory Judgments Act,

Ala. Code 1975, § 6-6-220 et seq., seeking

construction of a statute and its application in a

given situation; (5) valid inverse condemnation

actions brought against State officials in their

representative capacity; and (6) actions for

injunction or damages brought against State

officials in their representative capacity and

individually where it was alleged that they had

acted fraudulently, in bad faith, beyond their

authority, or in a mistaken interpretation of law.

See 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)); Alabama

Dep't of Transp. v. Harbert Int'l, Inc., 990 So. 2d

831 (Ala. 2008) (holding that the exception for

15

SC-2022-0930

declaratory-judgment actions applies only to

actions against State officials). As we confirmed in

Harbert, these "exceptions" to sovereign immunity

apply only to actions brought against State

officials; they do not apply to actions against the

State or against State agencies. See Alabama

Dep't of Transp., 990 So. 2d at 840-41.'

"Ex parte Alabama Dep't of Fin., 991 So. 2d 1254, 1256-57

(Ala. 2008). The sixth 'exception' to § 14 immunity was

restated in Ex parte Moulton, 116 So. 3d 1119, 1141 (Ala.

2013), as follows:

" '(6)(a) actions for injunction brought against

State officials in their representative capacity

where it is alleged 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).' " 3

Ex parte Hampton, 189 So. 3d 14, 17-18 (Ala. 2015) (emphasis added).

3As the Court previously has noted: "These actions are sometimes

referred to as 'exceptions' to § 14; however, in actuality these actions are

simply not considered to be actions ' "against the State" for § 14 purposes.'

Patterson v. Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002)." Alabama

Dep't of Transp. v. Harbert Int'l, Inc., 990 So. 2d 831, 840 (Ala. 2008),

abrogated on other grounds by Ex parte Moulton, 116 So. 3d 1119 (Ala.

2013).

16

SC-2022-0930

The OVC contends that the situation presented in this case "falls

squarely within" category (1) -- an action to compel state officials to

perform their legal duties -- or within category (3) -- an action to compel

state officials to perform ministerial acts. The OVC's brief, p. 21. In

support of that argument, the OVC attempts to draw parallels between

the facts in this case and those in State Highway Department v. Milton

Construction Co., 586 So. 2d 872 (Ala. 1991) ("Milton Construction II"),

State Board of Administration v. Roquemore, 218 Ala. 120, 117 So. 757

(1928), and Marous Bros. Construction, LLC v. Alabama State

University, 533 F. Supp. 2d 1199 (M.D. Ala. 2008). This Court has

commented that

"the takeaway from Milton Construction [II] and Marous

Brothers is that once the State has contracted for services and

has accepted those services, it is legally obligated to pay for

those services, and a claim seeking to enforce that legal

obligation falls within the parameters of the first 'exception'

to § 14 immunity."

Alabama State Univ. v. Danley, 212 So. 3d 112, 127 (Ala. 2016).

Similarly, the Court has stated that

"in Roquemore, Hardin[ v. Fullilove Excavating Co., 353

So. 2d 779 (Ala. 1977)], and Dampier[ v. Pegues, 362 So. 2d

224 (Ala. 1978)], the writ of mandamus issued, as McDowell-

Purcell[, Inc. v. Bass, 370 So. 2d 942 (Ala. 1979),] explains,

only after the discretion of state officials had been exhausted.

17

SC-2022-0930

Consequently, mandamus was, in those cases, an available

remedy to compel state agents to perform the essentially

ministerial act of rendering payment for goods or services

accepted. Cf. State of Alabama Highway Dep't v. Milton

Constr. Co., 586 So. 2d 872 (Ala. 1991) (State Highway

Department had no right to withhold payment from a

construction company under a contractual clause held in an

earlier opinion by this Court to be a void penalty provision)."

Jones, 895 So. 2d at 881 (emphasis added). In short, regardless of

whether the action at issue is permissible under category (1) or category

(3), this Court has held that a court order is available to compel state

officials to pay for goods or services that the particular state entity

involved in the transaction had accepted.

In its complaint, the OVC discussed "goods and services" that JSU

allegedly had received because of its membership in the OVC:

"19. Each year of its OVC membership, [JSU] received

continuous goods and services, including monetary benefits,

as a result of its membership. Many of the goods and services

are available only to an institution that is a member of a

National Collegiate Athletics Association ('NCAA') Division I

conference. It is nearly impossible for a school to function

within the Division I athletics structure without being a

member of a conference. In fact, schools transitioning into

Division I must now do so through a conference.

"20. As a result of its OVC membership, among other

goods and services, [JSU] received (a) organized, conference-

based athletic competitions; (b) the opportunity to compete for

individual and team conference championship titles, prestige,

and bragging rights, such as OVC Commissioner's Cups;

18

SC-2022-0930

(c) the opportunity to compete for NCAA championships

automatically by winning OVC conference championships or

by receiving an at-large selection, including the NCAA men's

(March Madness) and women's basketball tournament;

(d) access to the NCAA governance structure (which is limited

to schools affiliated with NCAA Division I multisport

conferences); (e) administrative and legal support, including

scheduling and compliance with NCAA and OVC rules;

(f) educational seminars and programming; (g) officiating;

(h) digital streaming and replay equipment; (i) media

exposure through the OVC's national media partners; (j) the

right to market and promote affiliation with the OVC, an

esteemed Division I conference; (k) a share of year-end OVC

distributions and basketball pool funds; (l) upon approval by

the Board of Presidents, a share of revenue from the OVC's

contracts with television broadcasters, including the OVC's

current contract with ESPN (the biggest in the OVC's

history); (m) access to the OVC's sponsorship partnership

with Learfield (previously Learfield IMG College); (n) a share

of NCAA year-end funds distributed through the OVC; (o) a

share of College Football Playoff Grant Funds; (p) competition

and academic awards and honors; and (q) in 2020, COVID-19

equipment and supplies.

"21. In particular, basketball pool funds have been a

unique benefit received by [JSU] due to its OVC membership.

Division I Basketball Performance Funds are monies that the

NCAA distributes to conferences for their members' success

in the Division I men's basketball tournament. Each win in

the Division I men's basketball tournament equates to a 'unit'

of Division I Basketball Performance Funds. Conferences --

not the NCAA -- determine how Division I Basketball

Performance Funds received from the NCAA are distributed

to their conference members. The OVC distributes Division I

Basketball Performance Funds to all its members, regardless

[of] which member won the tournament game resulting in the

'unit.' But not every conference distributes Division I

Basketball Performance Funds in this way. Because all OVC

19

SC-2022-0930

members receive a share of Division I Basketball Performance

Funds distributed to the OVC, [JSU] has received Division I

Basketball Performance Funds regardless of whether it won

March Madness tournament games."

The OVC contends that "this case involves JSU legally contracting

with OVC to receive goods and services and obligating itself to pay a

liquidated sum upon exiting the conference. … Thus, JSU became legally

obligated to pay the exit fee when it did not comply with the OVC

Constitutional provisions regarding departure." The OVC's brief, p. 23.

Jones and Killingsworth argue that the Roquemore/Milton

Construction II/Marous Brothers line of cases does not apply in this

instance because, they say,

"[t]his case is clearly not one where the OVC is seeking

payment for accepted goods and services. The OVC

Constitution, which contains the penalty provision, states

that the OVC is: 'A voluntary, non-profit association of

institutions committed to the conduct and governance of

intercollegiate athletics in proper relationship to the mission

and values of higher education.' Const., Art. 4.2. It is not a

buyer-seller or services contract. The OVC's Complaint itself

recognizes that the purpose of the provision is not to pay for

goods and services. Instead, the purpose of the provision is 'to

compensate the OVC for the effects of a member's departure.'

[Paragraph] 1. In other words, the Complaint alleges that the

OVC is seeking damages."

Jones and Killingsworth's brief, pp. 19-20 (record citations omitted).

20

SC-2022-0930

In further support of their argument that the OVC is seeking

damages against the State, rather than seeking payment for goods or

services received, Jones and Killingsworth note that the OVC's complaint

states:

"30. Exit fee provisions ensure the vitality and longevity

of collegiate athletics conferences. They are a critical

component of benefits received by member institutions, and

they protect the interests of athletic conferences and their

members. As but one important example in this case, the exit

fee will help offset costs that the OVC has already incurred

due to [JSU] resigning its membership."

(Emphasis added.) The complaint also asserts that "[t]he exit fee clause

is effectively a liquidated damages provision contained in the OVC

Constitution to compensate the OVC for the effects of a member's

departure." (Emphasis added.) The OVC expounded upon those

statements in its response to the motion to dismiss:

"The OVC is not limited to recovering only lost net

revenue -- indeed, that is the exact reason the exit fee is

included in the Constitution. A conference, here the OVC,

suffers more than lost revenue. As detailed above, the OVC

will suffer from lost opportunity costs, which include revenue-

generating opportunities, increased expenses in recruiting a

replacement member, loss in reputation, weakened

bargaining power, and other elements of damage. Because

these damages are hard to quantify, the OVC member

institutions chose to memorialize them into the exit fee."

21

SC-2022-0930

Based on the allegations in the OVC's complaint and the arguments

it presented to the circuit court, we agree with Jones and Killingsworth

that the conference-resignation fee described in Article 4.5.3 of the OVC

Constitution does not represent a payment for goods and services JSU

accepted for being a member of the OVC in the same way that the

plaintiffs in Roquemore, Milton Construction II, and Marous Brothers

sought payment for contracted-for goods and services that had been

accepted by the State. Instead, as the OVC admits, the conference-

resignation fee exists "because resigning membership negatively affects

the OVC and causes damages to the conference and other member

institutions." The OVC's brief, p. 23.

However, the fact that reimbursement to the OVC for goods and

services JSU accepted is not the sole purpose of the conference-

resignation fee does not mean that the OVC's claims against Jones and

Killingsworth seeking an order for payment of that fee constitute an

impermissible action for damages against the State.

"[T]he trial court can generally, by writ of mandamus, order

State officers in certain situations to pay liquidated damages

or contractually specified debts. The payment of these certain,

liquidated amounts would be only a ministerial act that State

officers do not have the discretion to avoid. [Alabama Agric. &

Mech. Univ. v.] Jones, 895 So. 2d [867] at 878-79 [(Ala. 2004)];

22

SC-2022-0930

[State Bd. of Admin. v.] Roquemore, 218 Ala. [120] at 124, 117

So. [757] at 760 [(1928)]. Furthermore, although the payment

of the funds 'may ultimately touch the State treasury,' Horn

v. Dunn Bros., 262 Ala. 404, 410, 79 So. 2d 11, 17 (1955), the

payment does not 'affect the financial status of the State

treasury,' Lyons [v. River Road Constr., Inc.], 858 So. 2d [257]

at 261 [(Ala. 2003)], because the funds 'do not belong to the

State,' Alabama Dep't of Envtl. Mgmt. v. Lowndesboro, 950

So. 2d 1180, 1190 n.6 (Ala. Civ. App. 2005) (two-judge

opinion), and the State treasury 'suffers no more than it

would' had the State officers originally performed their duties

and paid the debts. Horn, 262 Ala. at 410, 79 So. 2d at 17. The

trial court may not, however, award retroactive relief in the

nature of unliquidated damages or compensatory damages,

because such relief affects a property or contract right of the

State. Stark [v. Troy State Univ., 514 So. 2d 46 (Ala. 1987)];

Williams [v. Hank's Ambulance Serv., Inc., 699 So. 2d 1230

(Ala. 1997)]; Roquemore; J.B. McCrary Co. v. Brunson, 204

Ala. 85, 86, 85 So. 396, 396 (1920) ('mandamus will not lie to

compel the payment of unliquidated claims'); and Vaughan [v.

Sibley, 709 So. 2d 482 (Ala. Civ. App. 1997)]."

Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So. 2d 831, 845-46

(Ala. 2008) (emphasis added).

As we have already noted, the OVC alleged that the conference-

resignation fee "is effectively a liquidated damages provision …." There

is no dispute between the parties as to the amount of the fee, and there

also is no dispute that, if Article 4.5.3 of the OVC Constitution is

enforceable, JSU would owe the fee to the OVC. Cf. Woodfin v. Bender,

238 So. 3d 24, 31-32 (Ala. 2017) (plurality opinion) (agreeing with Justice

23

SC-2022-0930

Murdock's observation from his special concurrence in Harbert that the

cases discussing " 'claims that are "liquidated," when considered in

context, are references not merely to claims for amounts that have been

reduced to sums certain, but claims as to which there is no room for

dispute as to liability, i.e., whether the amounts at issue are owed' "

(quoting Harbert, 990 So. 2d at 849 (Murdock, J., concurring specially))).

Jones and Killingsworth strenuously argue that cases that have

required state officers to pay contractually obligated liquidated damages

as a ministerial act that the officers had no discretion to avoid do not

apply in this instance because, they say, "[l]iability is vigorously disputed

because the provision on which the OVC relies is an unenforceable

penalty. [JSU] (and Jones and Killingsworth) have discretion to refuse to

pay a $1,000,000 fee which arises out of an unenforceable penalty

provision." Jones and Killingsworth's brief, p. 26.4 Jones and

Killingsworth note that this Court has

"recognize[d] the well-settled law in Alabama that penalty

provisions are void as against public policy and that courts are

' "disposed to lean against any interpretation of a contract

which will make the provision one for liquidated damages

4Jones and Killingsworth's brief mentions the term "penalty" in

relation to the conference-resignation fee no less than 70 times in its

48 pages.

24

SC-2022-0930

and, in all cases of doubtful intention, will pronounce the

stipulated sum a penalty." ' See Camelot Music, Inc. v. Marx

Realty & Improvement Co., 514 So. 2d 987, 990 (Ala. 1987),

quoting Cook v. Brown, 408 So. 2d 143, 144 (Ala. Civ. App.

1981)."

Milton Construction Co. v. State Highway Dep't, 568 So. 2d 784, 789 (Ala.

1990) ("Milton Construction I"), overruled in part on other grounds by

Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 23 (Ala. 2007). In their

brief, Jones and Killingsworth then proceed to explain why they believe

that the conference-resignation fee described in Article 4.5.3 of the OVC

Constitution is a penalty rather than a liquidated-damages provision and

that, therefore, it is unenforceable.5 See Jones and Killingsworth's brief,

pp. 26-35.

5The Court in Milton Construction I summarized the legal

difference between a penalty and a liquidated-damages provision, and it

listed the criteria our courts use for distinguishing between the two:

"A penalty is in essence a security for performance

designed to punish one party for breach of contract, whereas

a liquidated damages provision is a sum to be paid in lieu of

performance (a sum that the parties agree upon as an

adequate assessment of damages that would result from a

possible breach). See Camelot Music, Inc. v. Marx Realty &

Improvement Co., [514 So. 2d 987, 990 (Ala. 1987)]; Cook v.

Brown, [408 So. 2d 143, 144 (Ala. Civ. App. 1981)]; see, also,

Forsyth v. Central Foundry Co., 240 Ala. 277, 198 So. 706

25

SC-2022-0930

(1940); Standard Tilton Milling Co. v. Toole, 223 Ala. 450, 137

So. 13 (1931).

" 'Attempts are sometimes made to conceal the fact

that the amount specified in a contract is a penalty

by using words indicating that the payment is

[something else]. There is a borderline along which

it is difficult to determine the question; but

payment of the specified amount will not be

enforced if the court is convinced that it is a

penalty the purpose of which was to stimulate

performance of a promise to do something else.'

"Restatement of Contracts, § 339 at 554 (1932). …

"Although Camelot Music, Inc. v. Marx Realty &

Improvement Co., supra, established an analysis to determine

whether a liquidated damages provision must fail as a

penalty, that analysis applies equally well to a determination

whether a disincentive clause must fail as a penalty. In

Camelot Music, Inc., supra, we cited three criteria by which a

stipulated damages clause may be characterized as liquidated

damages as opposed to a penalty:

" 'First, the injury caused by the breach must be

difficult or impossible to accurately estimate;

second, the parties must intend to provide for the

damages rather than for a penalty; and, third, the

sum stipulated must be a reasonable pre-breach

estimate of the probable loss.'

"514 So. 2d at 990, citing C. Gamble and D. Corley, Alabama

Law of Damages § 5-4 (1982). If one of these three criteria is

not met, the clause must fail as a penalty."

568 So. 2d at 790 (emphasis omitted).

26

SC-2022-0930

However, even though the issue whether the conference-

resignation fee constitutes a liquidated-damages provision or a penalty

that violates public policy appears to be an important one for determining

whether JSU is liable to the OVC under Article 4.5.3 of the OVC

Constitution, that issue is not before us in this appeal because it concerns

the merits of the OVC's claim. See Camelot Music, Inc. v. Marx Realty &

Improvement Co., 514 So. 2d 987, 990 (Ala. 1987) (noting that

"[d]etermining whether a liquidated damages provision is valid is a

question of law to be determined by the trial court based on the facts of

each case"). At this stage of the litigation, we do not assess the merits of

the OVC's claims; we are concerned with whether the OVC's claims

against Jones and Killingsworth in their official capacities are barred by

State immunity. Cf. Ex parte Thomas, 110 So. 3d 363, 367 (Ala. 2012)

(observing that, "[i]n this case, … ACIFA [the Alabama Corrections

Institution Finance Authority] and Thomas are essentially arguing that

the correctional officers' claims against ACIFA have no basis because,

they claim, ACIFA has nothing to do with the manner in which

correctional officers are compensated or the funds with which they are

compensated. This argument goes to the merits of the correctional

27

SC-2022-0930

officers' claims, and, regardless of whatever merit the argument might

have, it does not raise a justiciability issue.").

Moreover, Jones and Killingsworth are simply incorrect that

because they dispute the enforceability of the conference-resignation fee

described in Article 4.5.3 of the OVC Constitution, the payment of that

fee is a matter of discretion rather than a ministerial act that a court may

order them to have JSU pay. That same type of argument was presented

by the defendants in Barnhart v. Ingalls, 275 So. 3d 1112 (Ala. 2018),

with respect to the official-capacity claims asserted against them. 6

"In Barnhart, the Alabama Supreme Court considered

what it construed as an appeal by three ASSEC [Alabama

Space Science Exhibit Commission] officers in their official

and individual capacities. The basis of Barnhart was an audit

of ASSEC conducted by the Department of Examiners of

Public Accounts ('DEPA') in which DEPA discovered that

ASSEC had not complied with Alabama law in (1) its payment

of annual longevity bonuses to ASSEC employees; and (2) in

the manner it compensated ASSEC employees for working on

certain state holidays. Id. at 1116 … (citing Ala. Code [1975,]

§ 36-6-11(a) and § 1-3-8). Representatives of ASSEC

maintained, among other things, that the legislation

pursuant to which it was created removed it from the purview

of certain state employment laws, including the benefits

6In Ex parte Pinkard, [Ms. 1200658, May 27, 2022] ___ So. 3d ___

(Ala. 2022), this Court overruled the Barnhart Court's conclusion that

"any 'individual capacity' claims alleging breach of duties that 'existed

solely because of [the officers'] official positions' are substantively claims

against the State for purposes of § 14." ___ So. 3d at ___.

28

SC-2022-0930

statutes. Plaintiffs, former employees of ASSEC, filed suit

against ASSEC and several ASSEC officers, alleging that they

had not received all compensation to which they were entitled

by statute during their tenures as ASSEC employees. In

particular, plaintiffs alleged that they had not been paid the

amount of longevity bonuses to which they were entitled when

they were ASSEC employees and that they had not been

properly compensated for working on state holidays that were

not observed at ASSEC."

Alabama Space Sci. Exhibit Comm'n v. Merkel American Ins. Co., 400 F.

Supp. 3d 1259, 1263 (N.D. Ala. 2019). With respect to the ASSEC-

employee plaintiffs' claim seeking "an award of all moneys previously

earned but not paid because of the failure to comply with the benefits

statutes ('the retrospective-relief claim')," the ASSEC-officer defendants

argued that they were immune based on the doctrine of State immunity.

Barnhart, 275 So. 3d at 1118, 1121. The ASSEC-employee plaintiffs'

rejoinder -- like the OVC's response in this case -- was that,

"although that claim seeks the payment of money damages,

the claim is, they say, at its core, simply an attempt to compel

State officials to perform their legal duty or a ministerial act

-- that duty or act being the payment of money class members

are entitled to by the clear terms of the benefits statutes --

and such actions are not barred by § 14."

Id. at 1122. The ASSEC-officer defendants objected -- as Jones and

Killingsworth do in this case -- that the cases that have allowed suits

against state officers in their official capacities because the payment

29

SC-2022-0930

sought would involve a legal duty or ministerial act did not apply

because, they said, "whether the [ASSEC] is subject to the benefit

statutes is disputed in this case." Id. at 1123. The Barnhart Court

rejected that argument:

"In contrast, the issue in this case, as in Ex parte Bessemer

Board[ of Education, 68 So. 3d 782 (Ala. 2011)], is one of

statutory interpretation -- does a statute entitle the plaintiffs

to compensation they did not receive. As this Court explained

in Ex parte Bessemer Board:

" '[I]t is undisputed that the Bessemer Board

members have a statutory duty to pay [the

plaintiff] the appropriate salary increase under

§ 16-22-13.1, Ala. Code 1975. That statute

specifically provides that a public school teacher

with [the plaintiff's] years of experience being paid

under the State minimum-salary schedule shall

receive a 5.5% increase in salary beginning with

the fiscal year 2000-2001. The basis for this

calculation is at issue in this lawsuit. The amount

of the salary increase the Bessemer Board

members must pay [the plaintiff] involves

obedience to the statute; it does not involve any

discretion. The Bessemer Board members have a

legal duty to pay [the plaintiff] the correctly

calculated salary increase under the statute and in

doing so they are performing a ministerial act.

Therefore, [the plaintiff's] action against the

Bessemer Board members in their official

capacities is not an action "against the State" for

§ 14 purposes; thus, the Bessemer Board members

are not entitled to § 14 immunity from [the

plaintiff's] action to compel them to fulfill their

30

SC-2022-0930

statutory duty to pay her the appropriate salary

increase.'

"68 So. 3d at 790-91 (emphasis added). Thus, if the benefit

statutes obligated the [ASSEC] officers to pay the named

plaintiffs compensation they were not paid, the [ASSEC]

officers had no discretion to avoid that requirement; obedience

to the statute is mandatory. Any confusion the [ASSEC]

officers might have had regarding the interpretation of the

benefit statutes, however reasonable, is ultimately

immaterial because that confusion cannot serve as the basis

for avoiding a statutory requirement. In sum, if it is

ultimately determined that the named plaintiffs should have

received additional compensation pursuant to the benefit

statutes, the [ASSEC] officers had a legal duty to make those

payments all along, and in finally doing so they are merely

performing a ministerial act. Accordingly, the named

plaintiffs' retrospective-relief claim is not barred by § 14."

Barnhart, 275 So. 3d at 1124-25 (final emphasis added).

In sum, in Barnhart, the ASSEC-officer defendants had no

discretion to avoid paying the ASSEC-employee plaintiffs' compensation

if the compensation statutes applied to the ASSEC, and so the plaintiffs'

retrospective-relief claim was not barred by State immunity. Likewise, in

this case, Jones and Killingsworth would have no discretion to avoid

paying the conference-resignation fee if the conference-resignation fee as

described in Article 4.5.3 of the OVC Constitution is enforceable. Any

confusion Jones and Killingsworth might have had regarding whether

the conference-resignation fee was a penalty rather than a liquidated-

31

SC-2022-0930

damages provision is immaterial to whether paying the fee is a legal duty

or a ministerial act. Consequently, the OVC's official-capacity claims

against Jones and Killingsworth based on the conference-resignation fee

as described in Article 4.5.3 of the OVC Constitution are not barred by

State immunity.

Furthermore, the OVC alleges that JSU's receipt of tickets from the

OVC for the OVC's 2021 conference championship basketball tournament

valued at $15,000 is in the nature of contracted-for goods that JSU

accepted. Indeed, the only argument Jones and Killingsworth offer

against the OVC's claim seeking payment for the tickets is that "the OVC

has refused to pay [JSU] other sums that are owing despite [JSU's]

departure from the [OVC]." Jones and Killingsworth's brief, p. 10. That

is a merits-based defense, not one that implicates State immunity.

Therefore, under the Roquemore/Milton Construction II/Marous

Brothers line of cases, the OVC's official-capacity claims against Jones

and Killingsworth seeking $15,000 in reimbursement for the tickets JSU

received from the OVC for the OVC's 2021 conference championship

basketball tournament are not barred by State immunity.

32

SC-2022-0930

Jones and Killingsworth present one other argument pertaining to

the official-capacity claims asserted against them that warrants our

attention.

"As previously noted, the OVC has a claim pending

before the Board of Adjustment for the same relief it seeks

here -- the payment of a $1,000,000 penalty by [JSU] for

leaving the OVC. Despite already having a remedy, the OVC

tries to circumvent the Board of Adjustment's exclusive

jurisdiction over a contract claim against [JSU] by suing

Chairman Jones and President Killingsworth in their official

and individual capacities for injunctive relief. The official

capacity claims should be dismissed because they are barred

by state immunity."

Jones and Killingsworth's brief, p. 13. In essence, Jones and

Killingsworth contend that because the OVC has filed a claim against

JSU with the BOA, it cannot assert claims against Jones and

Killingsworth in their official capacities based on the same cause of

action. Put differently, Jones and Killingsworth seem to be asserting that

because the OVC concedes that the BOA has jurisdiction over its claims

against JSU, the OVC cannot assert claims against Jones and

Killingsworth in their official capacities that arise from the same

conduct.

Section 41-9-60, Ala. Code 1975, addresses the BOA's purpose:

33

SC-2022-0930

"The purpose of this division [§ 41-9-60 through § 41-9-

74, Ala. Code 1975] is to provide a method of payment by the

State of Alabama or any of its agencies, commissions, boards,

institutions or departments to persons for injuries to person

or property or for death occasioned by the State of Alabama or

any of its agencies, commissions, boards, institutions or

departments where in law, justice or good morals the same

should be paid."

Section 41-9-62, Ala. Code 1975, addresses the BOA's jurisdiction

and provides, in pertinent part:

"(a) The Board of Adjustment shall have the power and

jurisdiction and it shall be its duty to hear and consider:

"….

"(4) All claims against the State of Alabama

or any of its agencies, commissions, boards,

institutions or departments arising out of any

contract, express or implied, to which the State of

Alabama or any of its agencies, commissions,

boards, institutions or departments are parties,

where there is claimed a legal or moral obligation

resting on the state;

"….

"(b) The jurisdiction of the Board of Adjustment is

specifically limited to the consideration of the claims

enumerated in subsection (a) of this section and no others;

provided, that nothing contained in this division shall confer

upon the Board of Adjustment any jurisdiction now conferred

by law upon the State Board of Compromise provided for in

Sections 41-1-3 and 41-1-4, [Ala. Code 1975,] and nothing

contained in this division shall be construed to confer

jurisdiction upon the Board of Adjustment to settle or adjust

34

SC-2022-0930

any matter or claim of which the courts of this state have or

had jurisdiction …."

(Emphasis added.)

After the BOA was created by the legislature in 1935,7 this Court

discussed the purpose and powers of the BOA in a series of cases,

including: Dunn Construction Co. v. State Board of Adjustment, 234 Ala.

372, 175 So. 383 (1937); John E. Ballenger Construction Co. v. State

Board of Adjustment, 234 Ala. 377, 175 So. 387 (1937); and Lee v.

Cunningham, 234 Ala. 639, 176 So. 477 (1937). In one of those early

7An Alabama Lawyer article that reviewed the BOA's creation and

growth in its early years explained:

"The Alabama State Board of Adjustment owes its

existence to two developments which came in the early 1930's.

First, an increasing number of relief bills were being

presented to the Legislature …. Second, Governor Benjamin

Meek Miller was vetoing many of those relief bills which were

being passed. There is no record of the actual number of bills

vetoed, but investigation reveals ten acts providing relief for

injured State employees which were passed over the

governor's veto in 1931 and 1932.

"Disturbed by these two developments, Aubrey

Dominick, State Representative from Tuscaloosa, introduced

a bill establishing the Board, which passed and on

September 14, 1935, was approved by Governor Bibb Graves."

H. Ellsworth Steele, The Alabama State Board of Adjustment and the

Law, 19 Ala. Law. 397, 397 (1958).

35

SC-2022-0930

cases, Hawkins v. State Board of Adjustment, 242 Ala. 547, 548, 7 So. 2d

775, 776-77 (1942), this Court explained:

"The Legislature in th[e] Article of the Code [addressing

the authority of the Board of Adjustment] recognizes that

there is sometimes a moral obligation which justifies it under

the Constitution to appropriate money for certain claims

when there is no legal obligation to pay them, but there is a

duty to do so in the interest of the general public. State v.

Clements, 220 Ala. 515, 126 So. 162 [(1930)]; Board of

Revenue and Road Com'rs v. Puckett, 227 Ala. 374, 149 So.

850 [(1933)]; Moses v. Tigner, 232 Ala. 457, 168 So. 194

[(1936)].

"The authority of the Board of Adjustment is to act for

the Legislature on facts found by the board within defined

limits, when no court has jurisdiction, but when one of the

State agencies has so acted as to create a moral obligation

which should be discharged as a public duty. The board does

not sit as a court and does not legislate. But the Legislature

makes the appropriation and imposes the duty on the board

to find facts and draw deductions within defined limitations.

The legislative act then operates upon that finding."

(Emphasis added.) See, e.g., Lee, 234 Ala. at 641, 176 So. at 479 ("Our

judgment … is that the legislative purpose disclosed in the act … was to

confer on said board jurisdiction over claims against the state, colorable

legally and morally well grounded, not justiciable in the courts, because

of the state's constitutional immunity from being made a defendant

(Const. 1901, § 14), and to exclude from its jurisdiction claims well

grounded in law or equity, cognizable by the courts …."); Ex parte

36

SC-2022-0930

Cranman, 792 So. 2d 392, 399 n.9 (Ala. 2000) (plurality opinion) (stating

that "the Board of Adjustment … functions outside the judicial system"

and "extends a measure of compensation or relief when the rule of

sovereign immunity exempts the State and its respective agencies from

suit").

In Dunn Construction, the Court specifically discussed contract-

based claims such as those at issue in this case:

"The Legislature, as often declared, has authority to

make appropriations by way of relief where a moral obligation

of a public character has arisen. State Boards of Adjustment

may well be set up as a state agency, a factfinding body, with

administrative and quasi-judicial powers in the

administration of funds appropriated for such relief purposes,

the law itself defining the class of claims and the principles of

law on which the fund is to be administered.

"As for claims arising from contracts with the state,

including contracts through agencies authorized to contract

on behalf of the state, it is to be observed that all persons

dealing with the state are charged with knowledge that no one

has authority to subject the state to suit. Not that the holders

of state obligations are without remedy. When an obligation

of the state to pay money is created by law, or by contract duly

authorized, somewhere there is a duty imposed on a public

officer or officers to make payment from the funds

appropriated therefor. Performance of such official duty, in a

wide range of cases, not necessary to here review, may be

compelled by mandamus. This class of claims is evidently

intended to be excepted from the jurisdiction of the State

Board of Adjustment by the clause in section 2, excluding 'Any

37

SC-2022-0930

matter or claim of which the courts of the State have

jurisdiction.' "

234 Ala. at 376, 175 So. at 386 (emphasis added).

From the foregoing, it becomes clear that Jones and Killingsworth's

argument invoking the OVC's claim before the BOA misunderstands both

the purpose and powers of the BOA. Because the BOA is not a court,

"[t]he statutes that created the [BOA], and that enumerate its powers, …

do not create a right, but grant a privilege, to have certain types of claims

heard." Ex parte Houston Cnty. Bd. of Educ., 562 So. 2d 513, 514 (Ala.

1990). Thus, the fact that the OVC filed a claim with the BOA has no

bearing on our determinations that the OVC's claims against Jones and

Killingsworth in their official capacities seeking payment for the

liquidated amount of the conference-resignation fee and for the value of

the tickets JSU received for the OVC's 2021 conference championship

basketball tournament do not constitute claims against the State and

that, therefore, those claims are not barred by State immunity. It is true

that the BOA cannot exercise jurisdiction over claims amenable in our

courts, but obviously the OVC's claim with the BOA is not before us.

38

SC-2022-0930

B. Individual-Capacity Claims Against Jones and Killingsworth

The OVC contends that the circuit court erred in dismissing its

individual-capacity claims against Jones and Killingsworth because, the

OVC says, it is not obvious from the face of its complaint that Jones and

Killingsworth are entitled to State-agent immunity. In support of that

contention, the OVC cites and quotes from several cases in which we have

noted that

"a motion to dismiss is typically not the appropriate vehicle

by which to assert qualified immunity or State-agent

immunity and that normally the determination as to the

existence of such a defense should be reserved until the

summary-judgment stage, following appropriate discovery.

' "[I]t is the rare case involving the defense of [State-agent]

immunity that would be properly disposed of by a dismissal

pursuant to Rule 12(b)(6), [Ala. R. Civ. P.]." ' Ex parte Butts,

775 So. 2d [173] at 177 [(Ala. 2000)], quoting Patton v. Black,

646 So. 2d 8, 10 (Ala. 1994) (quoting earlier cases)."

Ex parte Alabama Dep't of Mental Health & Mental Retardation, 837

So. 2d 808, 813-14 (Ala. 2002).

We readily agree that determinations regarding the applicability of

State-agent immunity ordinarily are not appropriate at the motion-to-

dismiss stage of litigation. However, the circuit court's judgment

dismissing the OVC's claims did not specify the grounds for its decision,

and Jones and Killingsworth's first argument in their memorandum in

39

SC-2022-0930

support of the motion to dismiss with respect to the OVC's individual-

capacity claims was that the OVC had failed to state claims upon which

relief could be granted. They asserted:

"The only relief sought in Count VI is: (1) an injunction to stop

JSU from leaving the OVC, which has already occurred; and

(2) an order compelling JSU, 'Killingsworth and Jones to

perform the ministerial duty of causing payment to issue to

the OVC.'

"In their individual capacities, Jones and Killingsworth

lack the authority to make JSU do anything. They only have

authority when acting in their official capacities. No true

claim is asserted against Jones and Killingsworth in their

individual capacities. The individual-capacity claims against

them should be dismissed."

Jones and Killingsworth renew that argument in response to the OVC's

appeal, stating: "[I]s there any possible basis for claiming that Jones and

Killingsworth are personally responsible for an alleged debt of [JSU]? Of

course not. The claim was properly dismissed." Jones and Killingsworth's

brief, p. 37.

We agree with Jones and Killingsworth. As we noted in the

rendition of the facts, the OVC's count that included claims against Jones

and Killingsworth -- Count VI -- first alleged that, in their official

capacities, Jones and Killingsworth had failed to meet their

"responsibility to follow established procedures for the payment of

40

SC-2022-0930

[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" and

that "[t]hese acts and omissions constitute violations of ministerial,

rather than discretionary, duties." In other words, the OVC first alleged

official-capacity claims against Jones and Killingsworth.

However, the complaint then alleged:

"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."

(Emphasis added.) In other words, the OVC's complaint alleged that

Jones and Killingsworth could be held individually liable for their failure

to order JSU to pay its alleged contractual obligations and debts to the

OVC to the extent that their actions were not sanctioned or authorized

by JSU.

Thus, the OVC's complaint is clear that its claims against Jones

and Killingsworth were pleaded in the alternative: either Jones's and

41

SC-2022-0930

Killingsworth's actions were ministerial in their official capacities or

their actions were taken in their individual capacities and done willfully,

maliciously, intentionally, in bad faith, beyond their authority, or under

a mistaken interpretation of law. In other words, the OVC's official-

capacity and individual-capacity claims against Jones and Killingsworth

arose from the same conduct, and Jones and Killingsworth could be

acting in only one of those capacities when committing their acts or

omissions. We already have concluded in Part A of the "Analysis" portion

of this opinion that the OVC's official-capacity claims against Jones and

Killingsworth were not barred by State immunity because the OVC

alleged that it sought legally required payments from JSU. Jones and/or

Killingsworth could authorize such payments on JSU's behalf only in

their official capacities. Therefore, because Jones and Killingsworth were

acting in their official capacities with respect to their alleged conduct,

they could not also be liable for the same conduct in their individual

capacities. In other words, as Jones and Killingsworth argue, they owed

no duties to the OVC in their individual capacities with respect to the

conduct alleged by the OVC. See, e.g., Ex parte Pinkard, ___ So. 3d at ___

(explaining that "Barnhart's logic may have ultimately led to a correct

42

SC-2022-0930

result (dismissal), but it did so for the wrong reason. Barnhart correctly

understood that the [ASSEC] employees' individual-capacity claims were

nonstarters because the [ASSEC] officers obviously owed no duty in their

individual capacities to pay the employees.").

Moreover, as Jones and Killingsworth observe, although the OVC

"use[d] the 'magic words' to allege an individual-capacity claim," i.e.,

alleged that Jones's and/or Killingsworth's actions were taken willfully,

maliciously, intentionally, in bad faith, beyond authority, or under a

mistaken interpretation of law, the factual allegations in the OVC's

complaint do not support those allegations. Jones and Killingsworth's

brief, p. 36. This Court has observed:

"Although we are required to accept [the plaintiff's]

factual allegations as true at this stage of the proceedings, we

are not required to accept her conclusory allegations that [the

defendant] acted willfully, maliciously, fraudulently, or in bad

faith. Rather, to survive [the defendant's] motion to dismiss,

[the plaintiff] was required to plead facts that would support

those conclusory allegations. See Oxford Asset Mgmt., Ltd. v.

Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (noting, on

review of the dismissal of a complaint for failure to state a

claim, that '[t]he plaintiff's factual allegations are accepted as

true' but that 'conclusory allegations, unwarranted

deductions of facts or legal conclusions masquerading as facts

will not prevent dismissal')."

43

SC-2022-0930

Ex parte Gilland, 274 So. 3d 976, 985 n.3 (Ala. 2018). The facts provided

in the OVC's complaint provide no indication that Jones and/or

Killingsworth acted without JSU's authorization. Indeed, the allegations

indicate the exact opposite:

"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. …"

In its reply brief, the OVC argues that the foregoing allegations

"provided factual bases for plausibly concluding [Jones and

Killingsworth] acted beyond their authority -- JSU officials agreed to the

exit fee provision on numerous occasions and JSU instructed …

Killingsworth to take all necessary steps to resign from the OVC." The

OVC's reply brief, p. 21. In other words, the OVC contends that

Killingsworth willfully failed to pay the conference-resignation fee even

though it was a "necessary step" for JSU to leave the OVC.

44

SC-2022-0930

There are at least two problems with that argument. First, in the

circuit court and in its appellate brief, the OVC contended that "payment

of the exit fee was one of the 'necessary steps for [JSU] to resign its

membership in the OVC' " and, thus, that "such payment was a

ministerial duty mandated by the JSU Board resolution." The OVC's

brief, p. 27. In other words, the OVC originally used the complaint's

allegation concerning Resolution 621 in support of its official-capacity

claims against Killingsworth, not in support of its individual-capacity

claims. The OVC's reply-brief argument is a new spin on its allegations;

thus, we need not consider it. See, e.g., Baldwin Cnty. Elect. Membership

Corp. v. City of Fairhope, 999 So. 2d 448, 458 n.12 (Ala. 2008)

("Arguments made for the first time in a reply brief are not properly

before this Court.").

The second problem with the OVC's new spin on its factual

allegations is that the OVC never alleged in its complaint that the JSU

Board of Trustees authorized Killingsworth to pay the conference-

resignation fee or to pay for the tickets the OVC provided JSU for the

2021 conference championship basketball tournament. In other words,

the OVC's argument adds details to its factual allegations that it never

45

SC-2022-0930

presented in its complaint. On the face of the OVC's complaint, there are

no factual allegations that support that Jones and/or Killingsworth acted

willfully, maliciously, intentionally, in bad faith, beyond authority, or

under a mistaken interpretation of law by not authorizing JSU to make

the payments the OVC seeks to recover. The OVC's failure to plead facts

that supported its conclusory individual-capacity claims against Jones

and Killingsworth constitute another reason that the OVC did not state

viable individual-capacity claims.

For the foregoing reasons, we conclude that the circuit court did not

err in dismissing the OVC's individual-capacity claims against Jones and

Killingsworth.

IV. Conclusion

The OVC's claims against Jones and Killingsworth in their official

capacities seeking payment for the liquidated amount of the conference-

resignation fee described in Article 4.5.3 of the OVC Constitution and for

the value of the tickets JSU received for the OVC's 2021 conference

championship basketball tournament do not constitute claims against

the State, and, therefore, they are not barred by State immunity.

Accordingly, the circuit court erred in dismissing the OVC's official-

46

SC-2022-0930

capacity claims against Jones and Killingsworth. However, the OVC

failed to state individual-capacity claims against Jones and

Killingsworth for which relief could be granted because Jones and

Killingsworth lacked any duty apart from their official positions to make

the payments the OVC seeks to recover and because the OVC's complaint

did not supply the factual allegations necessary to support those

individual-capacity claims. Accordingly, we affirm the circuit court's

dismissal of the OVC's individual-capacity claims against Jones and

Killingsworth.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Wise, Bryan, Sellers, and Stewart, JJ., concur.

Shaw, J., concurs specially, with opinion, which Cook, J., joins.

Mitchell, J., concurs specially, with opinion.

Parker, C.J., concurs in part and concurs in the result, with opinion.

47

SC-2022-0930

SHAW, Justice (concurring specially).

I fully concur with this Court's opinion. I write specially to note the

following.

I agree that the complaint filed by the Ohio Valley Conference ("the

OVC") failed to state a claim against Randall Jones and Don C.

Killingsworth, Jr., in their individual capacities. Any duty to pay the

OVC in this case was created by a contractual relationship between it

and Jacksonville State University ("JSU"). Such payment on JSU's

behalf would necessarily be performed by its agents, because JSU cannot

act except through agents. Cf. Townsend Ford, Inc. v. Auto-Owners Ins.

Co., 656 So. 2d 360, 363 (Ala. 1995) ("A corporation is a legal entity, an

artificial person, and can only act through agents."). Any performance by

JSU's agents, here Jones and Killingsworth, would be taken only in their

official capacities: "State officials act for and represent the State only in

their official capacities." Ex parte Dickson, 46 So. 3d 468, 474 (Ala. 2010).

Alternatively, and for that same reason, an injunction to require Jones

and Killingsworth to perform an official act in their individual capacities

is by law impossible: "[A] suit for injunctive relief against a State official

in his or her individual capacity would be meaningless." Id.

48

SC-2022-0930

I further note that in its count for injunctive relief, the OVC sought

compensatory damages and attorneys' fees. To the extent that the OVC

sought injunctive relief relating to the remaining official-capacity claims,

the authority cited in the main opinion shows that compensatory

damages are barred by Art. I, § 14, Ala. Const. 1901 (Off. Recomp.). An

award of attorneys' fees is similarly barred. Ex parte Town of

Lowndesboro, 950 So. 2d 1203, 1211-12 (Ala. 2006).

Cook, J., concurs.

49

SC-2022-0930

MITCHELL, Justice (concurring specially).

I agree with Chief Justice Parker that our precedents clearly

establish that "a plaintiff's complaint does not have to plead facts to

support the exceptions to State-agent-immunity." ___ So. 3d at ___

(Parker, C.J., concurring in part and concurring in the result) (citing

Odom v. Helms, 314 So. 3d 220, 229 n.3 (Ala. 2020)). Nonetheless, I

understand the majority opinion today to be stating only that plaintiffs

who voluntarily inject the issue of State-agent immunity into a complaint

should take care to plead facts to support their position. In doing so, the

main opinion faithfully applies this Court's decision in Ex parte Gilland,

274 So. 3d 976 (Ala. 2018), which is not inconsistent with Odom in any

material respect. Moreover, because the main opinion is correct that

Randall Jones and Don C. Killingsworth, Jr., plainly "owed no duties to

the [Ohio Valley Conference ('the OVC')] in their individual capacities

with respect to the conduct alleged by the OVC," and that the OVC

therefore failed to state a claim on which relief can be granted, ___ So. 3d

at ___, I concur in full. I write specially only to emphasize that Odom

remains precedential and that courts in future cases must abide by its

holding that plaintiffs have no obligation to "anticipate a State-agent-

50

SC-2022-0930

immunity defense by pleading with particularity a [State-agent-

immunity] exception." 314 So. 3d at 229 n.3.

51

SC-2022-0930

PARKER, Chief Justice (concurring in part and concurring in the result).

I concur in the main opinion except for its alternative holding that,

to survive the State-agent-immunity ground in the motion to dismiss, the

complaint had to plead facts to support the exceptions to State-agent

immunity. That holding contradicts our soundly reasoned precedent.

We have repeatedly explained that a plaintiff's complaint does not

have to plead facts to support the exceptions to State-agent immunity.

See Odom v. Helms, 314 So. 3d 220, 229 n.3 (Ala. 2020); Harris v. Hicks,

[Ms. 1200717, Aug. 19, 2022] ___ So. 3d ___, ___ (Ala. 2022); Avendano v.

Shaw, [Ms. 1210125, Aug. 19, 2022] ___ So. 3d ___, ___ (Ala. 2022)

(plurality opinion). This rule flows directly from the procedural principles

governing motions to dismiss.

State-agent immunity is not an element of a claim; it is an

affirmative defense. See Burton v. Hawkins, [Ms. 1200825, Mar. 11,

2022] ___ So. 3d ___, ___ (Ala. 2022); Ex parte Coleman, 145 So. 3d 751,

753 (Ala. 2013); Ex parte Kennedy, 992 So. 2d 1276, 1279 (Ala. 2008).

When a defendant moves to dismiss under Rule 12(b)(6), Ala. R. Civ. P.,

for failure to state a claim, and bases the motion on an affirmative

defense, the defendant must show that the applicability of the defense is

52

SC-2022-0930

conclusively established by the complaint's own factual allegations. See

Ghee v. USAble Mut. Ins. Co., [Ms. 1200485, Mar. 31, 2023] ___ So. 3d

___, ___ (Ala. 2023); Crosslin v. Health Care Auth. of Huntsville, 5 So. 3d

1193, 1195 (Ala. 2008); Jones v. Alfa Mut. Ins. Co., 875 So. 2d 1189, 1193

(Ala. 2003). In other words, the defendant must show not that the

plaintiff has failed to "plead out of" the affirmative defense, but that the

plaintiff has (perhaps inadvertently) conclusively "pleaded into" the

affirmative defense. See generally 5 Charles Alan Wright et al., Federal

Practice and Procedure § 1276 (4th ed. 2015). If the motion to dismiss

argues that the plaintiff has done so, the plaintiff must then respond by

arguing why the complaint's allegations do not conclusively establish

that the affirmative defense applies. However, the plaintiff need not have

preemptively pleaded in the complaint facts to negate the affirmative

defense. See Ex parte Dan River, Inc., 794 So. 2d 386, 387 n.1 (Ala. 2000).

To require the plaintiff to have done so would reverse the procedural

burden on an affirmative-defense-based motion to dismiss.

Thus, on a motion to dismiss based on the affirmative defense of

State-agent immunity, "[t]he plaintiff need not [have] anticipate[d] a

State-agent-immunity defense by pleading with particularity a [State-

53

SC-2022-0930

agent-immunity] exception. [Rather], unless the inapplicability of all the

[State-agent-immunity] exceptions is clear from the face of the complaint,

a motion to dismiss based on State-agent immunity must be denied."

Odom, 314 So. 3d at 229 n.3; cf. Ex parte Butts, 775 So. 2d 173, 178

(denying mandamus relief from denial of motion to dismiss based on

State-agent immunity, because it was conceivable that one of the State-

agent-immunity exceptions applied); Ex parte Department of Mental

Health & Mental Retardation, 837 So. 2d 808, 813-14 (Ala. 2002) (same).

Indeed, a plaintiff need not plead the State-agent-immunity exceptions

at all; again, they are negations of an affirmative defense, not elements

of a claim.

This motion-to-dismiss procedure contrasts with the procedure on

a motion for a summary judgment based on an affirmative defense. In

the summary-judgment procedure, the defendant must initially submit

evidence and present argument showing that the affirmative defense

applies. See Rentz v. Grant, 934 So. 2d 368, 372 (Ala. 2006). The burden

then shifts to the plaintiff to present argument (and if necessary submit

evidence) showing that the affirmative defense does not apply. See id.

What does this procedure look like when the affirmative defense is State-

54

SC-2022-0930

agent immunity? "[A] defendant must first make a prima facie showing

that, at the time of the conduct giving rise to the claim, he was an agent

of the State" and "that the claim is based on one or more of certain

categories of conduct by the agent." Odom, 314 So. 3d at 224; see Ex parte

Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006) ("[A] State agent bears

the burden of demonstrating that the plaintiff's claims arise from a

function that would entitle the State agent to immunity.").

"If the defendant carries his burden of showing agency

and covered conduct, then the plaintiff must show either (1)

that non-immunity is required by the federal Constitution or

laws; the Alabama Constitution; or Alabama laws, rules, or

regulations enacted or promulgated to regulate a

governmental agency; or (2) that the agent 'act[ed] willfully,

maliciously, fraudulently, in bad faith, beyond his or her

authority, or under a mistaken interpretation of the law.' "

Odom, 314 So. 3d at 224 (citation omitted); cf. Reynolds, 946 So. 2d at

452.

There are decisions of this Court, including today's main opinion,

that have operated on a premise that a complaint must preemptively

negate the State-agent-immunity defense by pleading facts to support an

exception. See Ex parte Gilland, 274 So. 3d 976, 982-86 (Ala. 2018); Ex

parte Wilcox Cnty. Bd. of Educ., 279 So. 3d 1135, 1145-46 (Ala. 2018)

("Wilcox I"); Ex parte Wilcox Cnty. Bd. of Educ., 285 So. 3d 765, 778-79

55

SC-2022-0930

(Ala. 2019) ("Wilcox II"). Each of those decisions has made one of two

errors: either (a) reversing the motion-to-dismiss procedural burden, see

Wilcox II; today's main opinion, or (b) conflating the motion-to-dismiss

procedure with the summary-judgment procedure, see Gilland; Wilcox I.

For the reasons I have explained, each of those decisions is incorrect and

should be overruled.

Here, the defendants failed to show that the complaint's allegations

conclusively established that none of the State-agent-immunity

exceptions applied. The defendants were not entitled to dismissal merely

because the plaintiff did not affirmatively plead facts to support one of

the exceptions. By faulting the plaintiff for failing to do so, the main

opinion ignores our soundly reasoned cases (which the plaintiff cites) and

joins the mistaken ones that are due to be overruled.

56