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DOCUMENT 2

ELECTRONICALLY FILED
5/17/2018 2:52 PM
60-CV-2018-900027.00
CIRCUIT COURT OF
IN THE CIRCUIT COURT OF SUMTER COUNTY, SUMTER COUNTY, ALABAMA
ALABAMA
DEVON A. JAMES, CLERK

SUMTER COUNTY BOARD OF EDUCATION, )


)
Plaintiff, )
)
v. )
)
UNIVERSITY OF WEST ALABAMA; DR. KEN )
TUCKER, in his Official and Individual capacity; ) CV-2018-___________
JERRY F. SMITH, in his Official and Individual )
capacity; RANDALL HILLMAN, in his Official ) Civil Action No.
and Individual capacity; HAL BLOOM, JR., in his )
Official and Individual capacity; JUSTIN SMITH, )
in his Official and Individual capacity; TERRY )
BUNN, in his Official and Individual capacity; )
JOSEPH BROWN, in his Official and Individual )
capacity; SHEILA S. CLOUD, in his Official and )
Individual capacity; JERRY W. GROCE, in his )
Official and Individual capacity; JOHN KILLIAN, )
in his Official and Individual capacity; VICTOR H. )
VERNON, in his Official and Individual capacity; )
JOHN NORTHCUTT, in his Official and Individual )
capacity; REBECCA LEWIS, in her Official and )
Individual capacity; EARLENE LINDSEY, in her )
Official and Individual capacity; JEAN )
ANDERSON, in her Official and Individual )
capacity; THOMAS BALLOW, JR., in his Official )
and Individual capacity; WILLIE B. O’NEIL, in his )
Official and Individual capacity; ALEX SAAD, in )
his Official and Individual capacity; MARGARET )
LOVETT, in her Official and Individual capacity; )
DR. RICHARD HOLLAND, in his Official and )
Individual capacity; UNIVERSITY CHARTER )
SCHOOL; DR. JAN MILLER, in her Official and )
Individual capacity; LESLIE PRYSTUP EMORY, )
in her Official and Individual capacity; ANTHONY )
CREAR, in his Official and Individual capacity; DR. )
ROBERT E. WITT, in his Official and Individual )
capacity; KYLE B. EDMONDS, in his Official and )
Individual capacity; VERONICA M. TRIPLETT, in )
his Official and Individual capacity; DR. NATASHA )
SATCHER, in her Official and Individual capacity; )
and MICKY SMITH, in his Official and Individual )
capacity, )
)
Defendants. )
DOCUMENT 2

COMPLAINT FOR PRELIMINARY INJUNCTION,


PERMANENT INJUNCTION AND OTHER RELIEF

COMES NOW the Plaintiff, SUMTER COUNTY BOARD OF EDUCATION, by and

through its counsel, and hereby submits this Complaint for injunctive relief. In support thereof, the

plaintiff avers as follows:

PARTIES

1. Plaintiff Sumter County Board of Education is organized under the laws of the State

of Alabama with its principal place of business located in Sumter County, Alabama.

2. Defendant University of West Alabama is a corporation organized and existing under

the laws of the State of Alabama, with its principal place of business in Livingston, Alabama in

Sumter County.

3. Defendant Dr. Ken Tucker is over the age of nineteen (19) and is the President of the

University of West Alabama. This Defendant is being sued in his individual and official capacities.

4. Defendant Jerry F. Smith is over the age of nineteen (19) and is a Member of the

Board of Trustees for the University of West Alabama. This Defendant is being sued in his

individual and official capacities.

5. Defendant Randy Hillman is over the age of nineteen (19) and is a Member of the

Board of Trustees for the University of West Alabama. This Defendant is being sued in his

individual and official capacities.

6. Defendant Hal Bloom, Jr. is over the age of nineteen (19) and is a Member of the

Board of Trustees for the University of West Alabama. This Defendant is being sued in his

individual and official capacities.

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7. Defendant Justin Smith is over the age of nineteen (19) and is a Member of the Board

of Trustees for the University of West Alabama. This Defendant is being sued in his individual and

official capacities.

8. Defendant Terry Bunn is over the age of nineteen (19) and is a Member of the Board

of Trustees for the University of West. This Defendant is being sued in his individual and official

capacities.

9. Defendant Joseph Brown is over the age of nineteen (19) and is a Member of the

Board of Trustees for the University of West Alabama. This Defendant is being sued in his

individual and official capacities.

10. Defendant Sheila S. Cloud is over the age of nineteen (19) and is a Member of the

Board of Trustees for the University of West Alabama. This Defendant is being sued in her

individual and official capacities.

11. Defendant Jerry W. Groce is over the age of nineteen (19) and is a Member of the

Board of Trustees for the University of West. This Defendant is being sued in his individual and

official capacities.

12. Defendant John Killan is over the age of nineteen (19) and is a Member of the Board

of Trustees for the University of West. This Defendant is being sued in his individual and official

capacities.

13. Defendant Victor H. Vernon is over the age of nineteen (19) and is a Member of the

Board of Trustees for the University of West Alabama. This Defendant is being sued in his

individual and official capacities.

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14. Defendant John Northcutt is over the age of nineteen (19) and was a Member of the

Board of Trustees for the University of West Alabama.This Defendant is being sued in his individual

and official capacities.

15. Defendant Rebecca Lewis is over the age of nineteen (19) and was a Member of the

Board of Trustees for the University of West Alabama. This Defendant is being sued in her

individual and official capacities.

16. Defendant Earlene Lindsey is over the age of nineteen (19) and was a Member of the

Board of Trustees for the University of West Alabama. This Defendant is being sued in her

individual and official capacities.

17. Defendant Jean Anderson is over the age of nineteen (19) and is a Member of the

Board of Trustees for the University of West Alabama. This Defendant is being sued in her

individual and official capacities.

18. Defendant Thomas Ballow Jr., is over the age of nineteen (19) and was a Member of

the Board of Trustees for the University of West Alabama. This Defendant is being sued in his

individual and official capacities.

19. Defendant Willie B. O’Neil is over the age of nineteen (19) and was a Member of

the Board of Trustees for the University of West Alabama. This Defendant is being sued in his

individual and official capacities.

20. Defendant Alex Saad is over the age of nineteen (19) and is a Member of the Board

of Trustees for the University of West Alabama. This Defendant is being sued in his individual and

official capacities.

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21. Defendant Margaret Lovett is over the age of nineteen (19) and was a Member of the

Board of Trustees for the University of West Alabama. This Defendant is being sued in her

individual and official capacities.

22. Defendant Dr. Richard Holland is over the age of nineteen (19) and is the former

President to the University of West Alabama. This Defendant is being sued in his individual and

official capacities.

23. Defendant University Charter School is a corporation organized and existing under

the laws of the State of Alabama, with its principal place of business at Lyons Hall (formerly

Livingston High School), University of West Alabama, Livingston, Alabama 35470.

24. Defendant Dr. Jan Miller is over the age of nineteen (19) and is a Board Member of

the University Charter School. This Defendant is being sued in her individual and official capacities.

25. Defendant Leslie Prystup Emory is over the age of nineteen (19) and is a Board

Member of the University Charter School. This Defendant is being sued in her individual and official

capacities.

26. Defendant Anthony Crear is over the age of nineteen (19) and is a Board Member of

the University Charter School. This Defendant is being sued in his individual and official capacities.

27. Defendant Dr. Robert E. Witt is over the age of nineteen (19) and is a Board Member

of the University Charter School. This Defendant is being sued in his individual and official

capacities.

28. Defendant Kyle B. Edmonds is over the age of nineteen (19) and is a Board Member

of the University Charter School. This Defendant is being sued in his individual and official

capacities.

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29. Defendant Veronica M. Triplett is over the age of nineteen (19) and is a Board

Member of the University Charter School. This Defendant is being sued in her individual and official

capacities.

30. Defendant Dr. Natasha Satcher is over the age of nineteen (19) and is a Board

Member of the University Charter School. This Defendant is being sued in her individual and official

capacities.

31. Defendant Micky Smith is over the age of nineteen (19) and is a Board Member of

the University Charter School. This Defendant is being sued in his individual and official capacities.

VENUE AND JURISDICTION

32. Venue is proper in this Court as the Plaintiff’s principal place of business is Sumter

County, Alabama and the Defendant either directly or through its agents and/or representatives

actually conducts business throughout Sumter County and this judicial circuit.

FACTUAL ALLEGATIONS

33. In the Complaint, whenever it is alleged that a Defendant did any act or thing, it is

alleged that such Defendant, officers, agents, servants, employees, attorneys, or representatives did

such act or thing and that, at the time the act or thing was done, it was done with the full express,

implied, or apparent authorization or ratification of the Defendant(s) or was done in the normal and

routine course and scope of employment of the Defendant(s), and/or officers, agents, servants,

employees, attorneys, or representatives.

34. On or about May 19, 2011, Defendant University of West Alabama executed a

contract for the purchase of real property situated in Sumter County, Alabama, known as Livingston

High School.

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35. The sales contract contained the following covenants:

A. The University of West Alabama shall not permit the Property to be utilized
for any private, charter, or other school entity serving students in kindergarten
through twelfth grade or in pre-kindergarten educational programs, unless
said school or programs are under the control or supervision of the Sumter
County Board of Education, or are a part of the school system that the Sumter
County Board of Education controls, supervises, or manages.

B. The University of West Alabama’s Campus School will not be moved to


the Property.

A copy of the Sales Contract is attached hereto as Exhibit A.

36. The sales contract also stated the above-referenced covenants would be included in

the Deed.

37. A local attorney hired by University of West Alabama drafted the deed for the sale

of Livingston High School and the State Superintendent executed the deed on behalf of the Sumter

County Board of Education.

38. The Deed was recorded with the Judge of Probate for Sumter County on June 27,

2011.

39. At all times during the negotiation of the sale of Livingston High School, University

of West Alabama represented that Livingston High School would not be used for a K-12 school.

Instead, the University of West Alabama represented that Livingston High School would be

renovated and used for the University’s expansion. Specifically, UWA represented the College of

Education would be moved to the property.

40. On or about October 27, 2017, Plaintiff discovered University of West Alabama’s

intent to breach the restrictive covenants when University of West Alabama announced that the

University would open a Charter School in August of 2018 at Lyons Hall, formerly known as

Livingston High School.

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41. The actions of the University of West Alabama, in violation of the Agreement and

Covenants by operating a charter school on the subject property, have caused harm and will continue

to cause harm to the Sumter County Board of Education by adversely affecting enrollment and

funding.

42. In or about November 2017, the plaintiff contacted Dr. Ken Tucker and requested the

University of West Alabama honor the covenant it made to not use Livingston High School property

as a school.

43. In December 2017, counsel for University of West Alabama contacted plaintiff’s

counsel regarding a meeting.

44. In or about February 2018, representatives of University of West Alabama and

representatives for the Sumter County Board of Education met to discuss the plaintiff’s request that

University of West Alabama cease use of Livingston High School as a school. The plaintiff again

asked University of West Alabama to honor the agreement between the parties.

45. On April 10, 2018, University of West Alabama and Sumter County Board of

Education met again. Sumter County Board of Education, for the third time, requested that the

University of West Alabama honor the restrictive covenants to which the parties agreed during the

sale of Livingston High School in 2011.

46. To date, University of West Alabama has failed to cease its use of Livingston High

School property as a school. In fact, the University Charter School is slated to operate in the

Livingston High School property during the 2018-2019 school year.

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COUNT I
PRELIMINARY AND PERMANENT INJUNCTION

47. Plaintiff alleges and adopts each and every preceding paragraph as if fully set forth

herein and further alleges against Defendants, separately and severally, as follows:

48. The Sumter County Board of Education move this Court for a preliminary and

permanent injunction enjoining University of West Alabama and all its predecessors (merged,

acquired, or otherwise), successors, subsidiaries, divisions, departments, affiliates, sister and parent

entities, agents, representatives, employees, and other persons acting on its behalf from using the

Property formerly known as Livingston High School for any K-12 school purpose, and from any and

all uses of the Property which are inconsistent with the agreed-upon Covenants. Where there is no

inconsistency or ambiguity within a restrictive covenant, the clear and plain language of the covenant

is enforceable by injunctive relief. Dauphin Island Property Owners Ass’n, Inc. v. Kuppersmith, 371

So.2d 31 (Ala. 1979).

49. Unless this Court restrains and enjoins The University of West Alabama and all of

its predecessors (merged, acquired, or otherwise), successors, subsidiaries, divisions, departments,

affiliates, sister and parent entities, agents, representatives, employees, and other persons acting on

its behalf from using the Property for any purpose which violates the Covenants, the Sumter County

Board of Education will continue to suffer substantial and irreparable injury.

50. The actions of University of West Alabama are detrimental to the rights of the Sumter

County Board of Education.

51. Sumter County Board of Education has no adequate remedy at law for these injuries

and, therefore, requests that this Court issue a preliminary injunction and a permanent injunction

after a hearing/trial on the merits.

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52. Despite plaintiff’s repeated written and verbal notice to Defendants of their non-

compliance, Defendants have refused to take the necessary actions to comply with the Covenants.

53. This action seeks an immediate temporary restraining order pursuant to Rule 65,

Ala.R.Civ.P. 65(b), pending a hearing on a mandatory permanent injunction and trial on the merits

of this case.

54. Plaintiff has a likelihood of success on the merits of this Complaint in that the

evidence will show that the Covenants were recorded, the Covenants were referenced in the sales

contract and agreed upon by the Defendants.

55. Plaintiff has no adequate remedy at law. Monetary damages cannot make Plaintiff

whole. This dispute involves real property and thus, is unique. Therefore, the Plaintiff’s only viable

remedy is to enjoin the Defendants from allowing and/or operating a K-12 school on the

subject property.

56. Without a temporary restraining order, preliminary injunction or permanent

injunction, the Plaintiff will be irreparably harmed.

57. The benefit of enjoining the covenant violations outweighs any negative impact the

restraining order or injunction would have on the Defendants and a grant of the injunction is not

contrary to public interest.

COUNT II
FRAUD

58. Plaintiff alleges and adopts each and every preceding paragraph as if fully set forth

herein and further alleges against Defendants, separately and severally, as follows:

59. Defendants willfully and intentionally engaged in fraudulent misrepresentation.

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60. Defendant induced Plaintiff to enter into a contract to sell Livingston High School

by representing that the purchased Property would not be used to establish a private, charter or other

K-12 school entity.

61. Richard D. Holland’s assertions and representations of facts in his capacity as

President were not true. University of West Alabama and its Board of Trustee Members

misrepresented their intentions regarding Livingston High School. Defendants made such

representations recklessly and without regard for the truth.

62. Defendants intentionally suppressed from Plaintiff and its agents the true fact that

University of West Alabama always intended to establish a private, charter or other K-12 school

entity on the Property.

63. Richard D. Holland in his capacity as the President of the University of West

Alabama, made promises to Plaintiff to abide by the covenants of the sales contract which he and

the other Defendants had no intention of doing.

64. The Defendants acted fraudulently, in bad faith, beyond their authority, or under a

mistaken interpretation of the law.

65. Plaintiffs have been damaged and will continue to be damaged in an amount to be

proven at trial as a result of Defendant’s fraudulent and deceitful actions in misrepresenting material

facts to facilitate its purchase of the Property.

WHEREFORE, the Sumter County Board of Education respectfully prays for judgment

against University of West Alabama declaring decreeing and adjudging that University of West

Alabama and all of its predecessors (merged, acquired, or otherwise), successors, subsidiaries,

divisions, departments, affiliates, sister and parent entities, agents, representatives, employees, and

other persons acting on its behalf are preliminary and permanently enjoined from using the Property

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in any manner or for any purpose which violates the Covenants, and such other relief as this Court

deems just and proper. The Plaintiff further requests compensatory and punitive damages in an

amount to be determine at the trial of this matter.

s/ E. Dianne Gamble
E. Dianne Gamble (GAM021)
dgamble@hillhillcarter.com

OF COUNSEL:
Hill, Hill, Carter, Franco, Cole & Black, P.C.
31 Inverness Center Parkway, Suite 120
Birmingham, Alabama 35242
(205) 271-1780 (Telephone)
(205) 271-1799 (Facsimile)

THE PLAINTIFF DEMANDS A TRIAL BY JURY ON ALL CLAIMS


THAT MAY BE PROPERLY HEARD BY A JURY

THE DEFENDANTS WILL BE SERVED BY SPECIAL PROCESS SERVER

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EXHIBIT A