Alabama Litigation Lawyer & Attorney : Lightfoot Franklin & White : Appellate, Alabama Supreme Court (Supreme Court of Alabama)

Tucker sued the Bessemer Board of Education and several members alleging breach of contract and fraud.  The trial court granted summary judgment to Tucker against the Board on his breach of contract claim.   On appeal, the Borad argued that it was immune from suit as a result of sovereign immunity.   The summary judgment was affirmed without opinion.  After the summary judgment was affirmed, Tucker sought a writ of mandamus in the trial court to compel the Board to pay the judgment.  The trial court granted the petition, and the Board appealed.

On appeal, the Board again raised the issue of sovereign immunity.  Tucker argued that the prior affirmance of the summary judgment was the law of the case.

The Court of Civil Appeals recognized that the "supreme court has applied the law-of-the-case doctrine as a bar to subsequent appeals regarding the same issue."  Slip Op. p. 5.  The "no opinion" affirmance cited cases which indicated that the court had considered the substantive issues on appeal and, therefore, the prior affirmance "may establish the law of the case as to the Board's argument that it is immune."  Slip Op. p. 6.

However, quoting from Ex parte Discount Foods, 789 So. 2d 842, 846 n.4 (Ala. 2001), the court noted that the law of the case doctrine was not inflexible, "and it will be disregarded when compelling circumstances call for the redetermination of a point of law on a prior appeal . . ."  Slip Op. p. 7.  The court further quoted Ex parte Discount Foods for the proposition that this is "particularly true when the court is convinced that its prior decision is clearly erroneou or where an intervening or contemporaneous change in the law has occurred by an overruling of former decisions or when such change has occurred by new precedent established by controlling authority." Id.

Because the issue of immunity can be raised at any time, the court decided to revisit the issue of immunity.  After reviewing the immunity issue again, however, the court reaffirmed its prior finding that the Board was not immune from suit, and affirmed the trial court. 

This case involves a coal mining lease, and went before the state’s high court twice. We will call the first appeal Drummond I. The second appeal — the subject of this entry — we call Drummond II.

- Drummond I -

United Land leased Drummond the right to strip-mine coal from its property. The lease obligated Drummond to remove all the coal that was “economically recoverable.” The parties disagreed over whether Drummond had done this. Eventually, United Land sued. It alleged that Drummond had breached the lease by not removing all of the coal, while misrepresenting that it had in fact done so.

In the proceedings that spawned the first appeal, the circuit court entered summary judgment for Drummond and dismissed both the contract and fraud claims. The court reasoned, in relevant part, that United Land’s rights under the lease had expired.

The Supreme Court of Alabama reversed. Even if the lease had expired, the Court wrote, the parties had continued to mine and accept royalties under its aegis. It was thus converted into a tenancy at will, and its terms still controlled. If Drummond had breached those terms, then United Land’s claims were viable. The state’s high court expressly stated that it was offering no opinion on the merits of the contract claim; it was saying only that the circuit court had wrongly dismissed it. The fraud claim, for its part, could not be dismissed for being based on an expired lease, because the terms of that lease remained effective.

- Drummond II –

On remand, the circuit court again entered summary judgment for Drummond and dismissed both claims. United Land appealed. It argued that the Alabama Supreme Court’s previous determination that the fraud claim was viable — including, specifically, the court’s acknowledgement that some evidence suggested that Drummond had not mined all the coal, and had misrepresented doing so — that all this comprised the law of the case, and entitled United Land to a jury trial on the fraud claim.

The Alabama Supreme Court rejected this analysis. The law-of-the-case doctrine did not apply, nor bar the circuit court from again dismissing the fraud claim. First, the appellate court affirmed the dismissal of the contract claim. The court reminded the parties that its earlier decision had explicitly withheld judgment on the contract claim’s merits. Now, the high court reached those merits and held that Drummond had not breached the lease.

This, in turn, was fatal to the fraud claim. The alleged fraud consisted in Drummond’s supposedly misrepresenting whether it had breached the contract. The conclusion that Drummond had not breached the agreement necessarily sank the fraud claim. The earlier opinion had recognized the interrelation of the claims, and this made the law-of-the-case doctrine inapplicable. The Supreme Court’s previous discussion of the fraud claim “depended on the existence of contractual rights that made any alleged misrepresentation material.” But the court had now ruled that Drummond had not infracted those rights. Any misrepresentation about whether Drummond had breached the lease was thus immaterial.

The Supreme Court's earlier statements about the fraud claim could not in this context stand as the law of the case.  Putting the rule broadly, the court wrote: “The law-of-the-case doctrine does not apply . . . where, as here, the holding is necessarily contingent on resolution of other issues in the case.”

In Stockton, the trial court granted summary judgment to CKPD on claims arising out of a ground lease.  The Stocktons appealed, and, after deflection to the Court of Civil Appeals, the Court of Civil Appeals reversed, finding that a dispute of material fact prevented summary judgment.

On remand, CKPD presented additional evidence, and the trial court again granted summary judgment to CKPD.  The Stocktons appealed to the Supreme Court, and the summary judgment again was reversed.

Central to its ruling was the law of the case doctrine.  The Court noted that "whether the Court of Civil Appeals' holding was correct is not properly before this Court because of the law-of-the-case doctrine."  p. 10.  That ruling was the law of the case regardless of whether it was correct:  "'Under the doctrine of the 'law of the case,' whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated contine to be the facts of the case.'"  p. 10-11, quoting Blumberg v. Touche Ross & Co., 514 So. 2d 922, 924 (Ala. 1987). 

The Supreme Court went on to note that "CKPD did not seek certorari review from [the Supreme] Court of the judgment of the Court of Civil Appeals, and CKPD does not now challenge the application of the law-of-the-case doctrine.  Therefore, unless the facts upon which the holding of the Court of Civil Appeals was predicated have changed, the holding of the Court of Civil Appeals is the law of the case."  p. 11.

Thus, the review of the Supreme Court was limited to the new facts raised after the Court of Civil Appeals had ruled.  The Supreme Court found that the new evidence also was disputed, and that there were still questions of material fact.  Therefore, summary judgment was improper, and the summary judgment was reversed.