“Law of the case doctrine” is not inflexible and does not prevent a court from revisiting issue of jurisdiction.

In Bessemer Board of Ed. v. Tucker, Ms. 2070390 (Ala. Civ. App. June 20, 2008) , the Alabama Court of Civil Appeals addressed the application of the "law of the case" doctrine, and found that the doctrine is not inflexible.   "The doctrine directs a court’s discretion; it does not limit a court’s power."  Slip Op. p. 7.  Thus, the court revisited its prior ruling regarding jurisdiction.

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.