author: PER CURIAM.

text:
    MINESAHA, INC., d/b/a Exprezit v. TOWN OF WEBB
    2160087
    Court of Civil Appeals of Alabama.
    April 14, 2017
    Adam E. Parker of The Gil Law Firm, Dothan, for appellant.
    Steadman S. Shealy, Jr., of Shealy, Crum & Fike, P.C., Dothan, for appellee.
   PER CURIAM.

Minesaha, Inc., d/b/a Exprezit ("Minesaha"), appeals from a judgment entered by the Houston Circuit Court ("the circuit court") dismissing its action against the Town of Webb ("the town"). We reverse the judgment and remand this cause for further proceedings.

Background

On June 6, 2016, Minesaha filed a complaint against the town in the circuit court. In its complaint, Minesaha alleged, in relevant part:

"3. This complaint is brought pursuant to Ala. Code 1975[,] § 28-3A-11,[ ] and seeks reversal of the [town]'s denial of a retail liquor license applied for by [Minesaha].
"4. On April 12, 2016, [Minesaha] applied for a Lounge Retail Liquor License-Class II[ ] by filing an application to the State of Alabama Alcoholic Beverage Control Board. The purpose of this license was to allow [Minesaha's] store ... to operate as a package liquor store.
"5. Between April 12, 2016[,] and May 23, 2016, the Police Chief of the [town] posted surveys throughout the town asking citizens if they felt [that Minesaha's] gas station should be granted a license to sell liquor. The majority of responses to said survey were in favor of the license being granted.
"6. On or about April 18, 2016, representatives of [Minesaha] attended a city council meeting in [the town]. ( [Minesaha] is owned and operated by immigrants from India.) At said meeting, or shortly after said meeting, representatives of [Minesaha] were told that the [town] would deny the application due to [Minesaha's] owners['] and operators['] race and national origins. More specifically[,] that there was worry of [Minesaha]'s owners and operators 'taking over' the town.
"7. On May 23, 2016[,] the [town] held a city council meeting in which the city council voted 5-0 in favor of denying [Minesaha's] application. Multiple council members declined to give [a] reason as to the denial.
"8. That the [town] has denied [Minesaha's] application to sell liquor arbitrarily and without good cause.
"9. [Minesaha] now seeks judicial review of the [town]'s decision in denying the application in accordance with Ala. Code 1975[,] § 28-3A-11.
"WHEREFORE, PREMISES CONSIDERED, [Minesaha] requests this Honorable Court issue an Order against [the town], reversing the [town]'s denial of [Minesaha's] application for [a] license to sell liquor, and Order the [town] to issue [Minesaha] a Lounge Retail Liquor License Class II (Package)."

(Emphasis added.)

The town moved to dismiss Minesaha's complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that, based on the facts alleged in its complaint, Minesaha could not obtain the relief that it had requested because, the town said, § 28-3A-11, Ala. Code 1975, "is applicable only to the Alcoholic Beverage Control Board" and does not grant the town the power to issue liquor licenses. Instead, the town argued, " 'its consent and approval' is a necessary condition for the ABC Board to be required to issue a liquor license under this section." (Quoting § 28-3A-11.) The town attached to its motion as "Exhibit A" a copy of § 28-3A-11 but did not present to the circuit court any matters that were outside Minesaha's complaint.

Nevertheless, the circuit court subsequently entered an order scheduling a hearing regarding the town's "motion to dismiss, or in the alternative summary judgment," a transcript of which is not included in the record. Minesaha thereafter filed a response to the town's "motion for summary judgment," in which it argued: "[ Section 28-3A-11 ] is not the only grounds alleged in [Minesaha]'s complaint. [Minesaha] also raise[d] constitutional questions of due process and equal protection within its complaint." Minesaha further argued that "the decision of the [town] in denying an application for a liquor license is subject to judicial review[,] and is reversible if it is shown that the [town] acted arbitrarily in denying the application for a liquor license," citing, among other cases, Inn of Oxford, Inc. v. City of Oxford, 366 So.2d 690, 692 (Ala. 1978) (explaining that "arbitrary action of a local government unit in withholding its approval of a liquor license is subject to judicial review"), in support of its argument. In light of the foregoing, Minesaha asked that it be permitted to "amend [its] complaint to seek [a] petition for [the] Writ of Certiorari in this matter."

The town filed a "reply brief to [Minesaha]'s response and memorandum in support of its motion to dismiss," in which it essentially elaborated upon the position set forth in its motion to dismiss and asserted that the town's decision had been "based on public safety concerns and the various respondents' opposition to the application." The town also argued: "[Minesaha] is bound by [its] complaint. Because the only available method of judicial review with regard to denial of a liquor license is by common law of writ of certiorari, the Complaint fails."

Minesaha thereafter filed an amended complaint, which was substantially identical to its original complaint, with the exception of the following changes made to the final paragraphs:

"9. [Minesaha] now seeks judicial review of the [town]'s decision in denying the application in accordance with the laws of the State of Alabama.
"WHEREFORE, PREMISES CONSIDERED, [Minesaha] requests this Honorable Court grant [Minesaha] a bench trial on this matter, issue an Order against the [town], reverse the [town]'s denial of [Minesaha's] application for license to sell liquor, and Order the [town] to reconsider [Minesaha's] application at a public hearing."

(Emphasis added.)

On September 21, 2016, the circuit court entered a judgment that provided, in its entirety:

"This case comes before the Court as a result of the denial of a Lounge Retail Liquor License-Class II by the [town].
"[Minesaha] alleges that the decision of the [town] to deny the application was capricious and arbitrary and [that Minesaha] was discriminated against because its owners were of Indian origin. The [town] filed a Motion to Dismiss pursuant to Rule 12(b) [, Ala. R. Civ. P.].
"The [town] under its Charter has broad discretion to approve or disapprove the issuance of a liquor license within City limits. The Court must consider and review the allegations most strongly in the proponent's favor if there is any possibility that the pleader could prove circumstances that would entitle it to relief.
"[Minesaha] comes to the Court without any showing that it can prove facts in support of the claim that would entitle [it] to relief. Counsel's arguments are simply arguments without underlying proof. Common Law Writ of Certiorari would be the proper method to challenge the ruling; however, it matters not how the Court receives the case. The Court can consider the merits of the case in this format. [Minesaha] was unable to clearly define any circumstances where it could possibly prevail at further hearing.
"[The town]'s Motion to Dismiss is granted."

Minesaha filed a notice of appeal on October 28, 2016. This court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction. Our supreme court then transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975. See Atlantis Entm't Grp., LLC v. City of Birmingham, 231 So.3d 332 (Ala. Civ. App. 2017). On appeal, Minesaha argues that the circuit court erroneously dismissed its complaint, that it "erred in denying Minesaha a preliminary hearing on the town's motion to dismiss [at] which evidence would have been presented, and [that it] improperly used the standard for a motion for [a] summary judgment."

Analysis

We first consider the standard by which the circuit court was obligated to review the town's decision regarding Minesaha's liquor-license application so that we may properly ascertain the standard by which this court should review the circuit court's judgment. "Under Alabama law, specifically § 110 of the Alabama Constitution of 1901 and Ala. Code 1975, § 11-40-12(a), municipalities are generally classified into eight 'classes' based upon their 1970 federal census populations." Phillips v. City of Citronelle, 961 So.2d 827, 830 (Ala. Civ. App. 2007). Sections 28-1-6(a)(2) and (b)(2) and 28-1-7(c), Ala. Code 1975, provide for "expedited de novo proceedings heard by a circuit judge without a jury" regarding denials of approval of liquor-license applications by only class 1, class 2, and class 4 municipalities, respectively. "Where there is no statutory right of direct appeal from a local government's decision to deny an application for a liquor license, the only proper method of judicial review is by the common-law writ of certiorari." Phase II, LLC v. City of Huntsville, 952 So.2d 1115, 1119 n.3 (Ala. 2006). The town's population as measured by the 1970 federal census was 354 persons (see Ala. Code 1940 (Recomp. 1958), vol. 14B, p. 1437). Thus, under § 11-40-12(a), Ala. Code 1975, the town is a class 8 municipality to which neither § 28-1-6 nor § 28-1-7 applies, and the only manner by which the circuit court could have reviewed the town's decision regarding Minesaha's liquor-license application was upon a petition for the common-law writ of certiorari. See Phillips, 961 So.2d at 830.

Although Minesaha did not style its complaint or its amended complaint as a petition for the common-law writ of certiorari, Minesaha specifically requested in its response to the town's "motion for summary judgment" that the circuit court treat its complaint as a petition for the writ of certiorari and generally requested "judicial review of the [town]'s decision in denying the application in accordance with the laws of the State of Alabama" in its amended complaint. See § 6-6-640(a), Ala. Code 1975 ("All applications for ... certiorari ... shall be commenced by petition ...; [a]ny of the pleadings in such proceedings may be amended as often as occasion may require to attain the ends of justice ...; and ... the court shall award the relief, if any, to which the petitioner is entitled."). Furthermore, although the standard by which it reviewed Minesaha's complaint is not entirely explained by the language used in its judgment, the circuit court expressly acknowledged that a petition for the common-law writ of certiorari was the proper vehicle to request judicial review of the town's decision. See Sanders v. City of Dothan, 642 So.2d 437, 440 (Ala. Civ. App. 1994) (reviewing an "appeal" to the circuit court and noting that, "notwithstanding the manner in which [the plaintiff]'s action in the circuit court was styled, she argued to the trial judge that her case was to be treated as a petition for a writ of certiorari, and the judge agreed"); see also Robinson v. State, 12 So.3d 58, 59-60 (Ala. 2008) (holding that a circuit court had correctly "converted [an] action seeking a declaratory judgment to a petition for the writ of certiorari").

We conclude that Minesaha's complaint should properly be viewed as a petition for the common-law writ of certiorari, and the primary inquiry on appeal is therefore whether the circuit court correctly dismissed Minesaha's petition under the standards applicable to such proceedings. See Atlantis Entm't Grp., 231 So.3d at 341 (" ' " ' "This court's scope of appellate review [of a judgment entered on a petition for the writ of certiorari] is the same as that of the circuit court." ' " ' " (quoting Franks v. Jordan, 55 So.3d 1218, 1221 (Ala. Civ. App. 2010), quoting in turn Holland v. Pearson, 20 So.3d 120, 122 (Ala. Civ. App. 2008), quoting in turn South Alabama Skills Training Consortium v. Ford, 997 So.2d 309, 324 (Ala. Civ. App. 2008), quoting in turn Colbert Cty. Bd. of Educ. v. Johnson, 652 So.2d 274, 276 (Ala. Civ. App. 1994) ).

In its petition, Minesaha alleged that the town "arbitrarily" denied approval of its liquor-license application on the basis of Minesaha's owners' and operators' "race and national origins." Citing, among other cases, Hamilton v. Town of Vincent, 468 So.2d 145 (Ala. 1985) ; Black v. Pike County Commission, 375 So.2d 255 (Ala. 1979) ; Inn of Oxford, supra ; and Phillips, supra, Minesaha argues on appeal that its "allegations suffice to make a claim that the [t]own's denial was based upon arbitrary and improper reasons and are subject to judicial review." We agree.

" 'A municipality has the "broad" discretion to approve or disapprove the issuance of liquor licenses with respect to locations within the municipality. See § 28-3A-11, Ala. Code 1975; Ott v. Everett, 420 So.2d 258, 260 (Ala. 1982). However, the decision of the municipality in denying an application for a liquor license is subject to judicial review and is reversible if it is shown that the municipality acted arbitrarily in denying the application for a liquor license. See Black v. Pike County Comm'n, 375 So.2d 255 (Ala. 1979) ; Inn of Oxford, Inc. v. City of Oxford, 366 So.2d 690 (Ala. 1978) ; see also Hamilton v. Town of Vincent, 468 So.2d 145, 147 (Ala. 1985) (affirming trial court's judgment after finding that the liquor-license applicant had failed to carry burden of showing arbitrary and capricious action by licensing authority).'
" Phillips v. City of Citronelle, 961 So.2d 827, 829 (Ala. Civ. App. 2007)."

Atlantis Entm't Grp., 231 So.3d at 341.

[W]hile the scope of the state's power to regulate the sale of liquor is admittedly broader than its power to regulate an ordinary lawful business, even so, in the exercise of that power, neither the state nor local government units are exempt from constitutional limitations, whether it be the Commerce Clause, the Due Process Clause or Equal Protection Clause."

Inn of Oxford, 366 So.2d at 692. "[T]he Equal Protection Clause 'ensures the right to be free from intentional discrimination based on race.' " Ex parte City of Bessemer, 142 So.3d 543, 553 (Ala. 2013) (quoting Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1282 (11th Cir. 2008) ). See also Black v. Pike Cty. Comm'n, 360 So.2d 303, 304 (Ala. 1978) (holding that a county commission's denial of approval of a liquor-license application was subject to judicial review because "[t]he complaint allege[d] that [the plaintiff] [wa]s denied due process and equal protection of the law under both state and federal constitutions because the County Commission arbitrarily and capriciously denied her application for a restaurant liquor license").

As noted above, the town filed a motion to dismiss Minesaha's petition pursuant to Rule 12(b)(6), Ala. R. Civ. P. Rule 81, Ala. R. Civ. P., which describes the general applicability of the Alabama Rules of Civil Procedure, states, in relevant part: "(a) Proceedings Controlled by Statute. In the following proceedings, these rules shall be applicable to the extent that the practice in such matters is not provided by statute: ... (19) Mandamus, prohibition, certiorari and other remedial writs of a supervisory nature." (Emphasis added.) The Committee Comments on 1973 Adoption of Rule 81 refer practitioners to Ala. Code 1940, Tit. 7, §§ 1072-1080, the pertinent provisions of which are now located in §§ 6-6-640 through 6-6-642, Ala. Code 1975, for an explanation of the appropriate procedure to be followed regarding petitions for remedial writs.

Regarding the effect of those provisions, § 6-6-642, states, in relevant part:

"The common law, as now in force in this state, touching any of the matters embraced in this article, is not repealed, but left in full force, the true intent and meaning of this article being to provide a plain, more speedy, and less expensive mode of procedure in all cases to which it applies ...."

Section 6-6-640 specifically sets forth the "plain ... mode of procedure" described in § 6-6-642 and provides, in relevant part:

"(a) All applications for mandamus, prohibition, certiorari, or other remedial writ of a supervisory nature shall be commenced by a petition, verified by affidavit, in which the facts shall be stated as briefly and succinctly as the case will admit of, and any defendant may answer as to all such matters as may be necessary to his defense ....
"(b) In any such proceeding, the answer shall not be conclusive, but the truth or sufficiency thereof may be put in issue and controverted."

The town did not file an answer refuting Minesaha's allegations but asserted in its "reply brief to [Minesaha]'s response and memorandum in support of its motion to dismiss" that it had denied approval of Minesaha's liquor-license application "based on public safety concerns and the various respondents' opposition to the application." Our supreme court has explained that, when reviewing "[an] action of the circuit court in dismissing [a] petition for common-law certiorari," "[i]t is the general rule that all material facts which are well alleged in the petition, and not denied or put in issue by the answer, must be taken as true." H.H. Hitt Lumber Co. v. Turner, 187 Ala. 56, 58, 61, 65 So. 807, 808, 809 (1914). Thus, based on the principle articulated in H.H. Hitt Lumber, the circuit court was obligated to take Minesaha's allegations as true because the town did not deny those allegations in an answer. To the extent that the town's assertion regarding the "public safety concerns" underlying its decision that was proffered in its "reply brief" can be construed as a procedurally sufficient refutation of Minesaha's allegations, i.e., an answer under § 6-6-640(a), we note that § 6-6-640(b) forecloses a determination by the circuit court that such a refutation conclusively established the nonexistence of factual support for Minesaha's allegations.

In other words, the issue whether Minesaha's allegations were true was not resolved by the record in this case. See Hancock v. Bell, 41 Ala.App. 673, 674, 149 So.2d 841, 842 (1962) (citing the precursor to § 6-6-640(b) and noting: "There is a dispute in the evidence as to what, when, where and how the appellant's conduct was."). Because Minesaha's allegations, if true, demonstrate that the town unconstitutionally discriminated against Minesaha by denying approval of its liquor-license application on the basis of race and national origin, the circuit court's judgment dismissing Minesaha's petition was reversible error, and this cause is due to be remanded for further proceedings.

Because we are reversing the circuit court's judgment granting the town's motion to dismiss, we pretermit any discussion regarding Minesaha's arguments that the circuit court "erred in denying Minesaha a preliminary hearing on the town's motion to dismiss [at] which evidence would have been presented, and [that it] improperly used the standard for a motion for [a] summary judgment." See Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala. Civ. App. 2005).

REVERSED AND REMANDED.

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

Thomas, J., concurs specially, with writing.

THOMAS, Judge, concurring specially.

In June 2016, Minesaha, Inc., d/b/a Exprezit ("Minesaha"), initiated an action in the Houston Circuit Court ("the circuit court") against the Town of Webb ("the town") seeking judicial review of the town's decision to deny approval of Minesaha's liquor-license application. The town subsequently moved to dismiss Minesaha's complaint, and the circuit court thereafter entered a judgment granting the town's motion. Minesaha timely appealed the circuit court's judgment to this court, we transferred the appeal to the supreme court, and the supreme court transferred the appeal back to this court pursuant to § 12-2-7(6), Ala. Code 1975. The main opinion reverses the circuit court's judgment and remands this action for further proceedings. I fully concur in the main opinion for the reasons discussed therein. I write specially to provide guidance to the circuit court and the parties regarding the state of the law as it relates to proceedings on petitions for the common-law writ of certiorari initiated in circuit courts.

"Certiorari at common law was an original writ issued out of a superior, to an inferior court, to bring up the record and determine, from an inspection thereof, whether the judgment of the inferior court was erroneous or without authority." Ex parte Hennies, 33 Ala.App. 377, 379, 34 So.2d 22, 23 (1948).

"It was clearly pointed out in the case of St. John et al. v. Richter et al., 167 Ala. 656, [660-61,] 52 So. 465, 466 [ (1910) ], that: 'A return to the writ of certiorari issued should have been made or required, or an adequate reason shown why it was not made, before dismissing the petition or quashing the writ. The proper rule and practice in such cases has been thus stated: "The return is a prerequisite to any review to be undertaken by the court out of which the writ issues; and, until it is made, the court will not render any judgment or make any order except for the purpose of enforcing obedience to the writ and compelling the making of a return." 4 Ency. Pl. & Pr. p. 212, par. 2; People v. McCraney, 21 How. Pr. 149 [ (1861) ]. ' "

Byars v. Town of Boaz, 229 Ala. 22, 26, 155 So. 383, 386 (1934). "The return [to the writ] should consist of a full and complete transcript of the record or proceedings sought to be reviewed if the writ so orders ...." Cook v. Court of Cty. Comm'rs of Walker Cty., 178 Ala. 394, 397, 59 So. 483, 484 (1912). Moreover, "[t]he return should, of course, be responsive to the writ and should fully answer the allegations in the petition for the writ." Id.

Minesaha alleged in its petition that it attended a city-council meeting on April 18, 2016, and that, "[a]t said meeting, or shortly after said meeting, representatives of [Minesaha] were told that the city would deny the application due to [Minesaha]'s owners['] and operators['] race and national origin. More specifically that there was worry of [Minesaha]'s owners and operators 'taking over' the town." Minesaha also alleged that the town denied approval of its application at a May 23, 2016, city-council meeting. Presumably, the town keeps and maintains minutes or other records of its city-council meetings. See, e.g., Personnel Bd. for Mobile Cty. v. Bunkley, 255 Ala. 299, 301, 51 So.2d 368, 370 (1951) ("It may be assumed that there is a general obligation upon the Personnel Board to keep some correct record of the proceedings of its meeting. It is generally held that the minutes of such meetings, properly transcribed and authenticated, are sufficient for that purpose.") On remand, the circuit court should therefore issue the common-law writ of certiorari to the town, and the town's return to the writ should consist of full and complete minutes or records of the April 18, 2016, and May 23, 2016, city-council meetings referenced in Minesaha's petition or an adequate reason explaining why records were not made. After a review of the records or transcripts, " '[t]he only matter to be determined is the quashing, or affirmation, of the proceedings brought up for review.' " Fox v. City of Huntsville, 9 So.3d 1229, 1234 (Ala. 2008) (quoting Jefferson Cty. v. Berkshire Dev. Corp., 277 Ala. 170, 168 So.2d 13, 16 (1964) ).

Regarding whether Minesaha is entitled to an evidentiary hearing regarding its allegations, I note that, in Sanders v. City of Dothan, 642 So.2d 437, 440 (Ala. 1994), our supreme court reiterated that " '[t]he standard of review for certiorari limits the scope of review to questions of law and does not extend to review of the weight and preponderance of the evidence.' Parker v. Reaves, 531 So.2d 853[, 854] (Ala. 1988)." In so doing, it also noted that, "[o]n certiorari review, the scope of the trial court's inquiry is restricted to the record made before the [town]." Id. at 440 n.4 (citing Ex parte City of Tuskegee, 447 So.2d 713, 715 (Ala. 1984), and City of Dothan Pers. Bd. v. Herring, 612 So.2d 1231, 1232 (Ala. Civ. App. 1992) ). Furthermore, as noted in the main opinion, the town is a Class 8 municipality, and the legislature has not provided applicants with a statutory right to challenge a Class 8 municipality's denial of approval of their liquor-license applications through de novo proceedings in circuit courts. See §§ 28-1-6 and 28-1-7, Ala. Code 1975 (pertaining to Class 1, Class 2, and Class 4 municipalities); see also Weill v. State ex rel. Gaillard, 250 Ala. 328, 334, 34 So.2d 132, 138 (1948) ("The maxim 'expressio unius est exclusio alterius,' though not a rule of law, is an aid to construction. It has application when, in the natural association of ideas, that which is expressed is so set over by way of contrast to that which is omitted that the contrast enforces the affirmative inference that that which is omitted must be intended to have opposite and contrary treatment."), and Brock v. Herd, 187 So.3d 1161, 1164 (Ala. Civ. App. 2015) (" ' " '[I]t is not the office of the court to insert in a statute that which has been omitted[;] ... what the legislature omits, the courts cannot supply.' " ' " (quoting Ex parte Christopher, 145 So.3d 60, 66 (Ala. 2013), quoting in turn Pace v. Armstrong World Indus., Inc., 578 So.2d 281, 284 (Ala. 1991), quoting in turn 73 Am. Jur. 2d Statutes § 203 (1974) )).

Furthermore, caselaw considering a circuit court's certiorari review of a local government's decision regarding a liquor-license application has not expressly decided whether a circuit court may properly consider evidence outside the existing transcript or record. See Atlantis Entm't Grp., LLC v. City of Birmingham, 231 So.3d 332, 340-41 (Ala. Civ. App. 2017) (holding that a circuit court had properly reviewed a city council's rescission of approval of a liquor-license application "pursuant to the standard applicable to a petition for the writ of certiorari" but noting that the circuit court had received testimony at an evidentiary hearing); Phillips v. City of Citronelle, 961 So.2d 827, 830, 829 (Ala. Civ. App. 2007) (holding that the circuit court's review was limited by the "common-law authority to issue writs of certiorari" but noting that the circuit court had considered "testimony and evidence"); but see Phase II, LLC v. City of Huntsville, 952 So.2d 1115, 1119 (Ala. 2006) ("[T]he parties stipulated, and the ... [c]ircuit [c]ourt ordered, that the proper method of judicial review of the City's denial of the liquor license was by way of a petition for a common-law writ of certiorari and that Phase II's petition was to be decided based on the certified record presented to the city council."); Sanders, 642 So.2d at 440 (holding that the circuit court had properly reviewed an action as a petition for the common-law writ of certiorari and noting that "the [circuit] court had before it a certified copy of the minutes of the relevant meetings of the board of commissioners, as well as audio tapes of the meetings"); and Montgomery City Council v. G & S Rest., 98 So.3d 1, 2 (Ala. Civ. App. 2011) (reviewing a circuit court's judgment regarding a petition for the writ of certiorari and noting that "[t]he circuit court reviewed the record made before the Council").

However, in City of Jasper v. Civil Service Board of City of Jasper, 677 So.2d 761 (Ala. Civ. App. 1995), this court reviewed a circuit court's judgment upholding a decision of the Civil Service Board of the City of Jasper restoring a police officer to his position, and, in so doing, we noted an "exception" to the generally limited scope of certiorari review, stating:

" '[T]his court's review is ... based on a review of the record made before the Board and we look only to see if its findings are supported by substantial evidence.' Guthrie v. Civil Service Board of City of Jasper, 342 So.2d 372, 375 (Ala. Civ. App. 1977). An exception exists, however, where a party attempts to show that the Board's action denied him due process and 'boards, as well as courts, must observe that fundamental right. And this may be shown by evidence not included in the transcript of the proceedings before the Board.' Ex parte King, 364 So.2d [318,] 318 (Ala. 1978)."

Id. at 764. In reversing this court's decision in Board of Dental Examiners v. King, 364 So.2d 311 (Ala. Civ. App. 1977), our supreme court explained in Ex parte King:

"We agree that [ § 34-9-25, Ala. Code 1975,] does not permit a de novo hearing in the circuit court. However, a dentist disciplined by the Board has a clear right to show by the evidence that the Board's action denied him due process. All boards, as well as courts, must observe that fundamental right. See Katz v. Alabama State Board of Medical Examiners, 351 So.2d 890 (Ala. 1977). And this may be shown by evidence not included in the transcript of the proceedings before the Board. We cannot agree with the Court of Civil Appeals in holding that the statute precludes the introduction of independent or extraneous evidence in the circuit court to establish a claim that the Board acted unlawfully or arbitrarily or in such a manner as to deny Dr. King due process."

364 So.2d 318, 318 (Ala. 1978).

Furthermore, although it does not simultaneously address the scope of review under petitions for the common-law writ of certiorari, our supreme court's caselaw establishing the right to judicial review of a local government's denial of a liquor-license application seemingly emphasizes the importance of an adequate opportunity to demonstrate the existence of constitutional deprivations. For instance, in Black v. Pike County Commission, 360 So.2d 303, 306, 304 (Ala. 1978) (" Black I"), our supreme court reversed a circuit court's judgment upholding a county commission's denial of approval of a liquor-license application and remanded the action "for further proceedings," noting that "[c]onstitutional questions were presented which necessitate[d] further development of the facts." In Black v. Pike County Commission, 375 So.2d 255, 257 (Ala. 1979) (" Black II"), our supreme court ultimately upheld the county commission's decision, after noting that the applicant had been given "a full trial on the merits before the trial court without a jury." In Inn of Oxford, Inc. v. City of Oxford, 366 So.2d 690, 692 (Ala. 1978), our supreme court reaffirmed the principle articulated in Black I and reversed a circuit court's judgment dismissing the liquor-license applicant's complaint in which it had sought a judgment declaring that the city in that case did not have "irrevisable discretion" to withhold approval of liquor-license applications. In so doing, the supreme court acknowledged that the circuit court had previously conducted a "hearing on the merits" and placed no limitations on the evidence that the circuit court could consider on remand. Id. at 691.

Acknowledging the difficulty existing in the state of the law regarding the proper scope of judicial review under petitions for the common-law writ of certiorari, this court described that issue as follows in Phillips, supra :

"[A]lthough certiorari review ordinarily involves a simple review of the record made before the agency that rendered a decision under review, our Supreme Court has yet to condemn a trial court in this setting for having taken evidence pertaining to whether a liquor-license denial is arbitrary or capricious, as Harrelson [v. Glisson, 424 So.2d 591 (Ala. 1982),] and Black [I,] indicate. See also Ex parte King, 364 So.2d 318 (Ala. 1978) (allowing extraneous evidence to demonstrate arbitrariness on part of state agency despite silence of statute authorizing review of agency's decision). It is simply unnecessary for this court, in deciding this appeal, to forever resolve the tension between the duty of a trial court on certiorari to focus its review upon the record already made and its duty to ensure that a party has had a full opportunity to show whether the decision under review is arbitrary or capricious."

961 So.2d at 831 n.3.

In light of our supreme court's opinions in, among other cases, Ex parte King, Black II, Inn of Oxford, and Black I, and other cases applying the principles articulated therein, I believe that Minesaha should be permitted to offer evidence relevant to its allegations regarding the town's unconstitutional discrimination on remand. In so doing, I am mindful of the historically limited scope of review under the common-law writ of certiorari, the wide discretion afforded to municipalities when deciding whether to approve liquor-license applications, and the overarching principle that "[n]o person has or enjoys a vested right to have a liquor license." Cooke v. Loper, 151 Ala. 546, 550, 44 So. 78, 79 (1907). However, this state's body of law on the subject leads me to the conclusion that applicants are entitled to judicial review of municipalities' denials of their liquor-license applications and an opportunity to fully demonstrate the existence of unconstitutional discrimination if such circumstances are present.

That is not to say, however, that liquor-license applicants have a right to de novo proceedings in a circuit court, not provided by statute, regarding decisions of municipalities. In other words, if the town's minutes or records of the April 18, 2016, and May 23, 2016, city-council meetings contain factual findings supporting its decision, those findings may not be attacked collaterally through the introduction of additional evidence; they are to be taken as true in accordance with the scope of review applicable to petitions for the common-law writ of certiorari. However, if Minesaha cannot prove its allegations regarding the town's unconstitutional discrimination without presenting evidence outside the town's minutes or records, the circuit court should consider admitting the evidence proffered by Minesaha for that limited purpose in accordance with the rules of evidence. "The burden of proving any unconstitutional action is upon [Minesaha]." Black I, 360 So.2d at 306. If, after an examination of the town's minutes or records and any additional evidence that has been admitted, the circuit court concludes that the town did not act arbitrarily or capriciously and did not unconstitutionally discriminate against Minesaha, it should affirm the town's decision to deny approval of Minesaha's liquor-license application. Otherwise, the town's decision should be quashed. See Fox, supra, and Phillips v. Holmes, 165 Ala. 250, 256, 51 So. 625, 627 (1910) (explaining that, "under the common-law writ of certiorari, ... the only proper judgment is to affirm or quash the proceedings").

      Section 28-3A-11, Ala. Code 1975, provides, in relevant part:
      "[T]he board shall, where the application is accompanied by a certificate from the clerk or proper officer setting out that the applicant has presented his application to the governing authority of the municipality, if the licensed premises is to be located therein, and has obtained its consent and approval, issue a retail liquor license ...."
      Section 28-3-1(4), Ala. Code, 1975, defines the "board" as: "The Alcoholic Beverage Control Board."

      Rule 20-X-5-.04(2), Ala. Admin. Code (ABC Board), provides, in relevant part: "There shall be two classes of Lounge Retail Liquor Licenses. ... (b) Class II will permit the licensee to sell alcoholic beverages only for off-premises consumption in the original unopened containers and shall comply with the requirements of 20-X-5-.13."

      See Rule 12(b), Ala. R. Civ. P. ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment."), and Banks, Finley, White & Co. v. Wright, 864 So.2d 324, 327 (Ala. Civ. App. 2001) ("Documents attached to a motion to dismiss are considered a part of the pleadings if those documents were specifically referred to in the plaintiff's complaint and are central to the claim being brought.").

      Although § 6-6-640(a) requires that petitions for the writ of certiorari be verified by affidavits, which Minesaha failed to do in this case, that requirement is not jurisdictional, and the town has waived that issue by failing to properly raise the verification requirement in the circuit court. See Ex parte Collins, 84 So.3d 48, 53 (Ala. 2010) ("We hold that the verification requirement in § 6-6-640(a), Ala. Code 1975, for petitions for writs of ... certiorari ... is purely a procedural requirement, not a jurisdictional requirement, because the verification of the petition does not limit the power of the circuit court to adjudicate the petition. ... [I]f the respondent does not properly raise the verification requirement in the circuit court, that issue is waived.").


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    EX PARTE ALABAMA DEPARTMENT OF LABOR
    (In re: Personnel Staffing, Inc. v. Alabama Department of Labor)
    2160306
    Court of Civil Appeals of Alabama.
    April 14, 2017
    Joseph S. Ammons, gen. counsel, and Arthur F. Ray II, asst. gen. counsel, Alabama Department of Labor, Legal Division, for petitioner.
    Christie D. Knowles and Haley K. Tucker of Knowles & Sullivan, LLC, Gadsden, for respondent.
   THOMPSON, Presiding Judge.

The Alabama Department of Labor ("the Department") filed in this court a petition for a writ of mandamus challenging an order of the Etowah Circuit Court ("the trial court") denying the Department's motion to dismiss an administrative appeal filed by Personnel Staffing, Inc.

The materials submitted to this court indicate that the Department sent a letter dated July 25, 2016, to Personnel Staffing stating:

"We have been notified of a transfer of assets and employees from MANNING MICHAEL JASON, ADVANCED STAFFING LLC to your business effective 11/01/2015.
"Benefit cost charged and taxable payrolls credited to your predecessor's experience rating account are transferred to your account for tax rate purposes. Any subsequent benefit cost that would have been chargeable to your predecessor will be charged to your account.
"If you disagree with this determination, a written protest must be filed within fifteen (15) days from the date of this letter according to ALDOL Administrative Code 480-4-2-23. "

(Bold typeface in original.) We note that the parties have referred to this notification as the Department's determination of Personnel Staffing's "successor liability" for unemployment-compensation benefits.

It is undisputed that Personnel Staffing did not file a written protest of the July 25, 2016, successor-liability notification letter.

By letter dated July 28, 2016, the Department notified Personnel Staffing of its tax rate, effective January 1, 2016. That letter contained a notification that the "tax rate is final unless written request for review is submitted within 30 days" of the July 28, 2016, tax-rate notification letter.

On August 26, 2016, within the 30 days specified in the July 28, 2016, tax-rate notification letter, Personnel Staffing notified the Department that it was requesting a formal review of the Department's tax-rate determination. In that notification, Personnel Staffing disputed the Department's calculation of its unemployment-compensation tax by arguing that it had not acquired a new company or new employees-i.e., Personnel Staffing disputed its successor liability.

The Department, by letter dated September 8, 2016, notified Personnel Staffing that it had reviewed the July 28, 2016, tax-rate notification letter and had determined that the tax rate listed in that letter was correct. In doing so, the Department explained:

"Personnel Staffing, Inc., has been determined to meet the criteria of being a mandatory successor to Manning Michael Jones, d.b.a. Advanced Staffing LLC, as set forth in the Unemployment Compensation Laws of Alabama.
"Among the requirements to be made a successor set forth in Section 25-4-8(4) a. of the [unemployment-compensation] laws of Alabama is the acquisition of 65% of the employees of an existing business. Beginning the fourth quarter of 2015, Personnel Staffing, Inc., acquired 107 out of 145 former employees of Advanced Staffing LLC, approximately 74% of their employees. The employment of so many of Advanced Staffing LLC's employees satisfies the requirements of Alabama's [unemployment-compensation] laws and makes Personnel Staffing, Inc., a mandatory full-successor."

Personnel Staffing filed an appeal of the September 8, 2016, Department decision to the trial court. On November 18, 2016, the Department moved the trial court to dismiss Personnel Staffing's appeal. Personnel Staffing filed an opposition to the motion to dismiss. Apparently in response to that opposition, the Department, on January 13, 2017, filed in the trial court the affidavit of Jo Doyal, the supervisor of the Department's unemployment-compensation division. Thereafter, also on January 13, 2017, the trial court entered an order, based on its consideration of the parties' filings and the oral arguments it considered during a hearing on that date, in which the trial court denied the Department's motion to dismiss Personnel Staffing's appeal.

The Department has filed this petition for a writ of mandamus, arguing that the trial court lacked jurisdiction over Personnel Staffing's appeal because, it says, that appeal pertained to Personnel Staffing's arguments regarding the Department's determination of successor liability and, therefore, that the appeal was not timely. "We note that a lack of subject-matter jurisdiction may be raised at any time, and that the question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Johnson, 715 So.2d 783, 785 (Ala. 1998)." Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000). Further,

"[t]his Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997). Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala. 1987)."

Ex parte Flint Constr. Co., 775 So.2d at 808.

In its petition for a writ of mandamus, the Department argues that Personnel Staffing failed to timely appeal its July 25, 2016, successor-liability determination. The Department relies on a portion of Ala. Admin. Code (Dep't of Labor), Rule 480-4-2-.23, which it referenced in the portion in bold typeface in its July 25, 2016, successor-liability notification letter to Personnel Staffing. That regulation states, in pertinent part:

"(3) Determination of Status of Employer. Employing units will have their liability under the Alabama Unemployment Compensation law determined promptly upon receipt of all the required information prescribed by statute or these rules. The employing unit will be notified of the determination by regular mail and, if appropriate, the notice shall contain the assigned account number and contribution rate. If the employer disagrees with the final determination, an administrative review of the facts involved in the liability decision will be conducted at the written request of the employer. The request shall be made within 15 days of the date the notice of determination is mailed and shall be directed to the attention of 'Tax Operations.' "

(Emphasis added.)

The Department's July 25, 2016, successor-liability notification letter stated that it had been notified that Advanced Staffing LLC had transferred its assets and employees to Personnel Staffing and that the "benefit costs" that Advanced Staffing LLC would have incurred would be charged to Personnel Staffing's account with the Department. Although the July 25, 2016, letter notified Personnel Staffing of its right to dispute that determination within 15 days, Personnel Staffing filed no appeal or challenge of the July 25, 2016, successor-liability determination.

Personnel Staffing relies on a portion of § 25-4-54, Ala. Code 1975, which provides for a 30-day period to appeal certain determinations by the Department. Section 25-4-54(h) provides:

"(h) Review of contribution rate, etc. Any employer may apply to the secretary [of the Department] for and shall be entitled to a review as to the determination of his or her benefit ratio and his or her contribution rate as fixed by his or her benefit ratio, provided such application is filed within 30 days of the date of the mailing by the secretary to the employer of the notice of such determination. Pending such review, such employer shall make all contribution payments otherwise required by this chapter at contribution rates fixed by the determination sought to be reviewed and resulting overpayments or underpayments of contributions by the employer shall, upon any redetermination, be adjusted or refunded pursuant to Section 25-4-137[, Ala. Code 1975 ]. Any employer may within 30 days after the date of notification by the secretary to such employer of notice of the ruling of the secretary upon such application for review appeal such ruling to the circuit court of any county wherein the employer is engaged in doing business, upon such terms and upon giving such security for costs as the court may upon application prescribe. Trial in that court shall be de novo with respect to his or her benefit ratio."

Both parties refer this court to Alabama Department of Industrial Relations v. AHI Linden Lumber, LLC, 68 So.3d 187 (Ala. Civ. App. 2011). In that case, the Alabama Department of Industrial Relations ("ADIR"), which is now the Department, see § 25-2-1.1, Ala. Code 1975, notified AHI Linden Lumber, LLC ("AHI"), by letter dated May 13, 2008, that ADIR had determined, among other things, that AHI was a " 'successor in interest' " to Linden Lumber Company, Ltd., 68 So.3d at 189. That letter notified AHI of its right to appeal the determination within 30 days. Id. The letter did not reference any authority upon which it based that 30-day appeal period. AHI did not file an appeal of that May 13, 2008, determination until October 2, 2008, although it did timely appeal a 2009 assessment. The trial court determined that AHI was not a successor in interest, and ADIR appealed. This court held that the trial court had erred in reversing ADIR's determination that AHI was a successor in interest because AHI had failed to timely appeal that determination:

"Reading the provisions of § 25-4-54 as a whole, we are compelled to agree with ADIR that the determination that AHI was a successor in interest to Linden Lumber became final when AHI failed to appeal that determination within 30 days after it was notified of that determination by ADIR in the May 13, 2008, notification letter. As a result, we conclude that that determination could not be overturned by the trial court."

Alabama Dep't of Indus. Relations v. AHI Linden Lumber, LLC, 68 So.3d at 193.

In this case, Personnel Staffing failed to appeal the July 25, 2016, successor-liability determination within the 15 days set forth in Ala. Admin. Code (Dep't of Labor), Rule 480-4-2-.23(3), and as specified in the July 25, 2016, successor-liability notification letter from the Department to Personnel Staffing. Personnel Staffing contends that under § 25-4-54(h) and AHI Linden Lumber, supra, it had 30 days, rather than the 15 days specified in Rule 480-4-2-.23(3), to appeal. Even assuming, without deciding, that Personnel Staffing's argument is correct, Personnel Staffing's August 26, 2016, appeal was not filed within 30 days of the July 25, 2016, successor-liability determination. Thus, Personnel Staffing's appeal, insofar as it could be said to be taken from the July 25, 2016, successor-liability notification letter, is not timely.

However, Personnel Staffing timely filed its August 26, 2016, challenge of the July 28, 2016, tax-rate notification of its unemployment-compensation tax rate. Personnel Staffing filed that challenge within 30 days of the July 28, 2016, notification letter, as specified in the letter. The Department does not dispute that § 25-4-54(h) governed the time to appeal from the July 28, 2016, tax-rate notification letter. In response to that challenge, the Department, on September 8, 2016, rejected Personnel Staffing's arguments pertaining to the successor-liability determination by explaining its conclusion that Personnel Staffing was a successor to Advanced Staffing LLC. Personnel Staffing pointed out to the trial court, and also argues to this court in its response to the petition for a writ of mandamus, that in its September 8, 2016, letter, the Department addressed the issue of the successor liability and explained its successor-liability determination together with its finding that the tax rate it had assigned Personnel Staffing was correct. Personnel Staffing argues that the Department clearly addressed both the issue of successor liability and the applicable tax rate in the September 8, 2016, letter and that it had not maintained that Personnel Staffing's appeal of the successor-liability determination was untimely in that letter. However, when Personnel Staffing appealed the September 8, 2016, determination to the trial court, the Department argued that the successor-liability determination had been made final by Personnel Staffing's failure to appeal that determination within 15 days. In the trial court, Personnel Staffing raised the issue of that purported change in position by the Department. The Department has not addressed that issue in its petition for a writ of mandamus filed in this court.

Personnel Staffing also argued before the trial court, and reasserts before this court in opposing the petition for a writ of mandamus, that it cannot be required to appeal a successor-liability determination when the Department failed to explain, in its notification of that determination, the impact or financial effect that the successor-liability determination would have on Personnel Staffing. Personnel Staffing points out that the July 28, 2016, letter first notified it of the increase in the amount of its unemployment-compensation tax caused by the successor-liability determination and that it appealed the July 28, 2016, tax-rate determination. Personnel Staffing maintains that, until it understood the impact or financial effect of the Department's successor-liability determination, it had no reason to decide whether to appeal that determination. The Department has not addressed, either before this court or before the trial court, Personnel Staffing's argument that it was not required to appeal the successor-liability determination until the Department had notified it how that determination would impact its unemployment-compensation tax rate.

Thus, in opposition to the Department's motion to dismiss, Personnel Staffing asserted two arguments before the trial court upon which the trial court could have based its decision to deny the Department's motion to dismiss. This opinion should not be construed as commenting on the merits of those arguments. Ex parte Austal USA, LLC, 233 So.3d 975, 981 (Ala. 2017) (in considering a motion to dismiss, this court does not consider whether a party may ultimately prevail but whether there is a possibility the party might prevail); Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993) (same). However, the Department did not address either of those arguments before the trial court, and it has not addressed them in its petition for a writ of mandamus filed in this court. We are cognizant that the Department's position is that Personnel Staffing is barred from disputing its successor-liability determination; however, in failing to address the arguments Personnel Staffing asserted before the trial court, the Department has left to this court the burden of determining whether the trial court erred in accepting one or both of those arguments. Ex parte Simpson, 36 So.3d 15, 25 (Ala. 2009) (" 'It is not this Court's function to do independent research to determine whether a petitioner for a writ of mandamus has established a clear legal right.' " (quoting Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 972 (Ala. 2007) (emphasis omitted))).

It is the burden of the Department, as the petitioner, to demonstrate a clear legal right to the relief it seeks. We conclude that the Department has failed to meet its burden of demonstrating a clear legal right to relief, and, therefore, we deny its petition for a writ of mandamus.

PETITION DENIED.

Donaldson, J., concurs.

Thomas, J., concurs in the result, without writing.

Moore, J., concurs in the result, with writing, which Pittman, J., joins.

MOORE, Judge, concurring in the result.

The Alabama Department of Labor ("the Department") petitions this court to issue a writ of mandamus to the Etowah Circuit Court compelling that court to dismiss an appeal filed by Personnel Staffing, Inc. This court denies that petition. For the following reasons, I concur in that result.

Rule 480-4-2-.23(3), Ala. Admin. Code (Dep't of Labor), provides:

"Determination of Status of Employer. Employing units will have their liability under the Alabama Unemployment Compensation law determined promptly upon receipt of all the required information prescribed by statute or these rules. The employing unit will be notified of the determination by regular mail and, if appropriate, the notice shall contain the assigned account number and contribution rate. If the employer disagrees with the final determination, an administrative review of the facts involved in the liability decision will be conducted at the written request of the employer. The request shall be made within 15 days of the date the notice of determination is mailed and shall be directed to the attention of 'Tax Operations.' Should the employer disagree with the results of the review and upon notice fails to submit the required reports and/or pay the contributions that become due under these rules or statute, the employer may be given the opportunity for a hearing. Such hearing will be provided during the assessment proceedings as prescribed by statute and rules."

Under the foregoing regulation, the Department may determine whether an "employing unit" is a successor in interest to a previously covered employer in order to ascertain its "liability" under Alabama's unemployment-compensation laws.

In this case, the Department notified Personnel Staffing, by letter dated July 25, 2016, that it had determined that Personnel Staffing was a successor in interest to Michael Jason Manning and Advanced Staffing LLC. However, the Department did not inform Personnel Staffing of its contribution rate at that time. Notably, Rule 480-4-2-.23(3) provides that, "if appropriate, the notice shall contain the assigned account number and contribution rate." (Emphasis added.) In this case, because the Department was changing the contribution rate for Personnel Staffing, it would have been appropriate for the Department to notify Personnel Staffing of its contribution rate, which the Department did not do until three days later on July 28, 2016. Thus, the receipt of the July 28, 2016, letter should be considered the triggering event for seeking administrative review.

Section 25-4-54(h), Ala. Code 1975, provides, in pertinent part:

"Any employer may apply to the secretary [of the Department] for and shall be entitled to a review as to the determination of his or her benefit ratio and his or her contribution rate as fixed by his or her benefit ratio, provided such application is filed within 30 days of the date of the mailing by the secretary to the employer of the notice of such determination."

Pursuant to that statute, an employer is entitled to administrative review regarding the Department's determination of its contribution rate by applying to the Secretary of the Department within 30 days. To the extent that Rule 480-4-2-.23(3) limits an employer to only 15 days to seek administrative review of the determination of a contribution rate, that regulation conflicts with § 25-4-54(h), and the 30-day limitations period in the statute prevails. Ex parte Jones Mfg. Co., 589 So.2d 208, 210 (Ala. 1991) ("The provisions of a statute will prevail in any case of a conflict between a statute and an agency regulation.").

By letter dated August 26, 2016, Personnel Staffing properly availed itself of its right to administrative review within 30 days of the date of the July 28, 2016, letter containing the contribution-rate determination. The Department concluded its administrative review and notified Personnel Staffing by letter dated September 8, 2016, that it maintained the accuracy of the adjusted contribution rate based on its determination that Personnel Staffing was, indeed, a successor in interest. Section 25-4-54(h) provides that a party has 30 days from the notice of the final determination by the Department of a contribution rate to file an appeal to the appropriate circuit court if it disagrees with the Department's decision. Personnel Staffing timely filed its notice of appeal to the Etowah Circuit Court ("trial court"). Thus, the trial court has subject-matter jurisdiction over the final determination made by the Department in regard to the correct contribution rate, which includes the issue whether Personnel Staffing has properly been deemed a successor in interest.

This case differs from Alabama Department of Industrial Relations v. AHI Linden Lumber, LLC, 68 So.3d 187 (Ala. Civ. App. 2011), an opinion I authored. In that case, the Alabama Department of Industrial Relations, which is now the Department, see § 25-2-1.1, Ala. Code 1975, notified AHI Linden Limber, LLC ("AHI"), by letter dated May 13, 2008, that the Department of Industrial Relations had determined that AHI was a successor in interest to Linden Lumber Company, Ltd. In that same letter, the Department of Industrial Relations "assigned AHI an employer account number and informed AHI of its unemployment-compensation contribution rate." 68 So.3d at 189. The Department of Industrial Relations informed AHI that it could file a written protest of the determination within 30 days, consistent with § 25-4-54(h). AHI did not file a written protest or request an administrative review within the 30-day period outlined in the letter. AHI later challenged a 2009 unemployment-contribution-rate assessment on the basis that it was not a successor in interest. When the Department of Industrial Relations denied the challenge, AHI appealed to the Marengo Circuit Court, which determined that AHI was not a successor in interest.

On appeal, this court determined that the Marengo Circuit Court had lacked jurisdiction over the Department of Industrial Relations' determination that AHI was a successor in interest. This court's opinion hinged on the fact that AHI did not timely appeal from the original determination of its status as a successor in interest, which had been made in the May 13, 2008, letter and which also informed AHI of its contribution rate. Under § 25-4-54(h), AHI could have requested an administrative review and appealed any adverse final determination regarding its contribution rate as a successor in interest, but it failed to do so. The opinion concludes that AHI could not later raise the issue of its status as a successor in interest, which had already been finally determined, in an appeal from a 2009 assessment.

In this case, on the other hand, Personnel Staffing requested administrative review of its contribution rate as a successor in interest within 30 days of receiving the July 28, 2016, letter, which was the first letter that contained all the information the Department had a mandatory duty to provide to Personnel Staffing in order for it to determine whether to seek administrative review. Unlike AHI, which was informed of its contribution rate as a successor in interest on May 13, 2008, but did not timely request an administrative review, Personnel Staffing fully complied with § 25-4-54(h) by requesting administrative review and appealing from the final determination of the Department within the specified periods. By challenging its contribution rate as a successor in interest in its appeal, Personnel Staffing is not attempting to improperly raise an issue that should have been raised in an earlier administrative review and appeal.

Pursuant to § 25-4-54(h), the trial court has subject-matter jurisdiction over the appeal filed by Personnel Staffing, which includes the issue whether the contribution rate had been properly assessed against Personnel Staffing as a successor in interest. The Department has failed to show that the trial court lacks jurisdiction and that it has a clear legal right to dismissal of the appeal. Therefore, its petition for a writ of mandamus is due to be denied. See Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000).

Pittman, J., concurs.

      Specifically, in its August 26, 2016, letter notifying the Department of its challenge to the July 28, 2016, tax-rate notification, Personnel Staffing stated:
      "Our understanding is that this proposed increase is due to new business with one particular client. This new client was awarded through our normal course of business and is [sic] no form or fashion considered to be an acquisition of the company or its employees. Furthermore, we did not willingly or knowingly violate any provision of Section 25-4-8[, Ala. Code 1975]."


author: MOORE, Judge.

text:
    K.R.S. v. DEKALB COUNTY DEPARTMENT OF HUMAN RESOURCES
    2160066
    Court of Civil Appeals of Alabama.
    April 14, 2017
    Tommy Allen French, Trussville, for appellant.
    Steve Marshall, atty. gen. and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

K.R.S. ("the mother") appeals from a judgment of the DeKalb Juvenile Court ("the juvenile court") terminating her parental rights to H.S., J.S., and D.S. ("the children"). We affirm the juvenile court's judgment.

Procedural History

On June 21, 2016, the DeKalb County Department of Human Resources ("DHR") filed separate petitions seeking to terminate the parental rights of the mother and S.S. ("the father") to H.S. (case number JU-13-102.03), to J.S. (case number JU-13-103.03), and to D.S. (case number JU-13-104.03). Following a trial on September 15, 2016, the juvenile court entered a single judgment in all three cases on October 7, 2016, terminating the parental rights of the mother and the father to the children. On October 20, 2016, the father filed a postjudgment motion in the three cases. The mother filed her notice of appeal relating to the three cases to this court on October 20, 2016; that appeal was held in abeyance until November 1, 2016, the date on which the juvenile court entered an order denying the father's postjudgment motion. See Rule 4(a)(5), Ala. R. App. P. The father has not appealed.

Issue

To terminate parental rights, a juvenile court must find grounds for termination and must consider and reject all other viable alternatives. Ex parte Beasley, 564 So.2d 950, 955 (Ala. 1990). In this case, the mother, who testified at trial that she was not capable of caring for the children at the time, does not contest that the juvenile court properly found grounds for termination. See Ala. Code 1975, § 12-15-319 (providing that a juvenile court may terminate the parental rights of a parent who is unable to discharge his or her parental responsibilities to and for his or her children). The mother argues, however, that the evidence does not support the juvenile court's determination that there was no other viable alternative to termination of her parental rights. Specifically, the mother contends that the juvenile court could have placed the children in the custody of their maternal aunts and their husbands without terminating her parental rights.

Standard of Review

The determination of whether a viable alternative to termination of parental rights exists in a given case is a question of fact for the juvenile court. T.V. v. B.S., 7 So.3d 346, 352 (Ala. Civ. App. 2008). At trial, the party petitioning for termination of parental rights bears the burden of proving the lack of a viable alternative by clear and convincing evidence. See Ex parte Ogle, 516 So.2d 243, 247 (Ala. 1987). Clear and convincing evidence is " ' "[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion." ' " C.O. v. Jefferson Cty. Dep't of Human Res., 206 So.3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4) ).

" '[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.'
" KGS Steel[, Inc. v. McInish,] 47 So.3d [749] at 761 [ (Ala. Civ. App. 2006) ].
"To analogize the test set out ... by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C. Cir. 1947),] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, 'the judge must view the evidence presented through the prism of the substantive evidentiary burden'; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would 'produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.' "

Ex parte McInish, 47 So.3d 767, 778 (Ala. 2008). This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V., 971 So.2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id.

Facts

The facts pertinent to the issue on appeal are as follows. DHR has been involved with the family since February 2013 when the mother was arrested for public intoxication and for driving under the influence while the children were in the vehicle. Over the next three years, the mother struggled with substance-abuse problems until she overdosed in April 2016. At trial, the mother testified that she had not used any illegal drugs since she overdosed and that she was "clean." The mother testified, however, that she was not in a position to care for the children at the time of the trial. The mother stated that she did not want the children in foster care and that she wanted what was best for the children. She stated that, if they could not be returned to her, she wanted them to stay with her sisters, the children's maternal aunts, which, she said, was the best place for them.

The children temporarily resided with K.B., one of their maternal aunts, and her husband, J.B., from February 2013 to May 2013 following DHR's initial involvement with the family. The children were returned to the custody of their parents in May 2013, but the parents separated in August 2013 and the mother and the children moved in with the mother's uncle. At some point, the family reunited in a home in Henagar, but DHR determined that the parents were abusing drugs again and arranged for the children to move in with L.S., their paternal grandmother. In May 2015, DHR removed the children from L.S.'s home, after she complained that she could no longer keep the children because of problems she was having with the mother and the father, and placed the children together in foster care.

DHR later moved J.S. into a group home for boys in Huntsville. Tangela Williams, an employee of DHR, stated that H.S. and D.S. were moved to a different foster-care placement in June or July 2015. In April 2016, D.S. was placed with K.B. and J.B., and, in July 2016, DHR placed H.S. and J.S. in the home of K.S., another of their maternal aunts, and her husband, Je.S. The children continued to reside with their maternal aunts and their husbands at the time of the trial. Williams testified that the children were doing "great" in the care of the maternal aunts and their husbands and that the children maintained contact with each other and spoke to each other weekly.

K.B. testified that she and J.B. wanted to adopt D.S. K.B. testified that they did not want merely to have custody of D.S. without a termination of the mother's parental rights. K.B. explained that she had two children of her own and that it had disrupted the structure and emotional stability of her family when the children had come to live with them in 2013 only to be returned to the mother months later. K.B. testified that she did not want to accept custody subject to the possibility that the mother could regain custody later, causing further pain after she had made the effort to provide a safe environment for D.S. Additionally, K.B. testified that she wanted to protect her children and D.S. from the mother's bringing her "issues" into their home. K.B. repeated that she would maintain custody of D.S. only upon the condition that the mother's parental rights were terminated. K.B. testified that the child-custody issues had been ongoing since 2013 and that she could not care for D.S. or act as a resource for the mother without termination of the parents' parental rights.

J.S. and H.S. indicated that they did not want to be adopted, and K.S. testified that she would accede to their wishes. However, K.S. testified that she and Je.S. still wanted J.S. and H.S. to live with them permanently, without having to worry that their custody could be disrupted through future court proceedings. She testified that she wanted the children to have stability and to continue their relationship with one another, which, she said, she and her husband had facilitated. K.S. testified that she wanted the parental rights of the parents to be terminated.

Jane Bonds, the service-casework supervisor for DHR, testified that, if the children did not remain in their custodial placements with the maternal aunts and their husbands, DHR would be separating them and placing them in foster homes with people that were unfamiliar to the children. Bonds testified that, if K.S. and Je.S. were to keep J.S. and H.S., they would still be separated from D.S. if the parental rights of the mother and the father were not terminated. Bonds testified that termination of parental rights would provide certainty and permanency for the children and the maternal aunts and their husbands, who otherwise would be unwilling to retain custody of the children. Bonds testified that termination of parental rights would be the only method for assuring that the parents could not attempt to regain custody.

Discussion

As stated previously, a juvenile court cannot terminate parental rights when a viable alternative exists. See J.B. v. DeKalb Cty. Dep't of Human Res., 12 So.3d 100 (Ala. Civ. App. 2008). In this context, an alternative is "viable" when it is available to the juvenile court as an alternative means of successfully protecting the children from parental harm while serving their best interests. See J.B. v. Cleburne Cty. Dep't of Human Res., 991 So.2d 273, 283 (Ala. Civ. App. 2008). In this case, the undisputed evidence indicates that it would serve the best interests of the children to be in the custody of the maternal aunts and their husbands and that the maternal aunts and their husbands would adequately protect the children from parental harm. Therefore, the question for the juvenile court was whether that alternative was available as an alternative to termination of parental rights.

From the testimony of the witnesses, the juvenile court could have been clearly convinced that the maternal aunts and their husbands would maintain continuing custody of the children only if they were assured that the mother could not disrupt that custody in the future. Bonds correctly testified that the conditions established by the maternal aunts could be accomplished only by a termination of parental rights. Under Alabama law, an award of the custody of a dependent child, without a termination of parental rights, is always subject to modification based on changed circumstances. See M.W.H. v. R.W., 100 So.3d 603 (Ala. Civ. App. 2012). A termination of parental rights, on the other hand, "necessarily precludes the parent from later attempting to reestablish his or her visitation privileges, right to custody, or other parental rights with the child or children in question." In re Grayson, 419 So.2d 234, 237 (Ala. Civ. App. 1982) (Bradley, J., concurring specially). Unlike a judgment divesting a parent of custody, a judgment terminating parental rights is immediate, permanent, and irrevocable. See C.B. v. State Dep't of Human Res., 782 So.2d 781, 785 (Ala. Civ. App. 1998) ("[T]ermination of parental rights is an extreme action that cannot be undone; it is permanent."). Alabama law does not provide any other remedy that permanently prevents a parent from attempting to regain custody of his or her child. Thus, termination of parental rights represented the sole method by which the juvenile court could secure the best interests of the children.

We cannot accept the mother's argument that the juvenile court could have awarded custody of the children to the maternal aunts and their husbands despite their objections. Alabama law does not grant a juvenile court the power to compel a relative or other person to accept custody of a child in order to prevent a termination of parental rights. In fact, Alabama law provides that placement with a relative may be considered a viable alternative only when the relative is not only fit, but also is willing to assume custody and care of the child. See, e.g., J.B. v. Jefferson Cty. Dep't of Human Res., 869 So.2d 475 (Ala. Civ. App. 2003). In this case, the maternal aunts both expressed an unwillingness to maintain custody of the children absent termination of the mother's parental rights. Thus, the custodial arrangement advocated by the mother was not a feasible alternative the juvenile court could have successfully employed.

In Ex parte T.V., 971 So.2d 1, which the mother cites in her brief to this court, our supreme court held that a juvenile court had erred in terminating parental rights when it could have maintained the status quo by which an acquaintance of the mother exercised custody of the child while the mother progressed toward reunification with the child. In this case, however, that option was not available to the juvenile court because the maternal aunts would not agree to continuing custody without termination of parental rights. Ex parte T.V. does not require a reversal of the judgment in this case.

In its final judgment, the juvenile found, in pertinent part:

"That the parents' attorneys argue that there exists a viable alternative to termination of parental rights, which is continued placement with the maternal aunts. However, after hearing the testimony of the maternal aunts and observing their demeanor, the Court is not persuaded by this argument. [K.B.], who has placement of [D.S.], described how she and her husband had taken all three children in previously and what a difficult period of adjustment that was for their family and their children as well as the [the children]. Then when the children were returned to the parents, it caused heartache and difficulty in their family with their children. [K.B.] testified that their family could not go through that again with [D.S.] and that a condition of her keeping [D.S.] was that the parents' rights would be terminated so they could not get custody of [D.S.] back again later.
"Likewise, maternal aunt, [K.S.], testified that she wanted permanent custody in order to keep [H.S.] and [J.S.] so that the parents could not take the children from her in the future. She testified that her children and she and her husband could not take the loss of the children once they had become part of their family unit.
"Both maternal aunts expressed that they love [the mother], who is the mother of the children. [K.B.] expressed a desire for [D.S.] to know her family history and to know the family she comes from, and stated that she and [K.S.] would allow the children to remain connected.
"The Court finds that if parental rights are not terminated, these maternal aunts likely will not keep these children, which likely will result in the children going to separate foster homes. The Court therefore finds that placement with the maternal aunts is not a viable alternative to a termination of parental rights."

Because the record contains clear and convincing evidence supporting those factual findings and the ultimate determination that awarding custody to the maternal aunts and their husbands was not a viable alternative to termination of parental rights, we affirm the juvenile court's judgment.

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.


author: WELCH, Judge.

text:
    Lonnie Lee COLBURN v. STATE of Alabama.
    CR-14-1143.
    Court of Criminal Appeals of Alabama.
    April 29, 2016.
    Toni Jacqueline Braxton, Helena, for appellant.
    Luther Strange, atty. gen., and Monica Early, asst. atty. gen. for appellee.
   WELCH, Judge.

Lonnie Lee Colburn pleaded guilty to the unlawful manufacture of a controlled substance in the first degree, a violation of § 13A-12-218, Ala.Code 1975. Colburn was sentenced to 15 years' imprisonment.

On April 14, 2015, the circuit court conducted a guilty-plea colloquy with Colburn. During the colloquy, Colburn was informed of the constitutional rights he was waiving by pleading guilty. Colburn was also informed of the range of punishment under the sentencing guidelines for the offense to which he was pleading guilty. Following the colloquy, the court accepted Colburn's guilty plea.

On May 4, 2015, Colburn filed a pro se motion to withdraw his guilty plea. In his motion, Colburn claimed that counsel had misrepresented to him that the offense to which he was pleading guilty was a Class A felony and that he had since learned that the offense was a Class B felony. On May 5, 2015, the circuit denied Colburn's motion, stating that the offense to which Colburn had pleaded guilty was, in fact, a Class A felony. Colburn appealed.

On appeal, Colburn argues that the trial court erred in denying his motion to withdraw his guilty plea without holding an evidentiary hearing and that his Sixth Amendment right to counsel was violated when the trial court denied his pro se motion to withdraw his guilty plea without first informing him of his right to counsel to assist in the preparation of that motion and without ascertaining if Colburn had knowingly and intelligently waived his right to the assistance of counsel.

In Humphrey v. State, 110 So.3d 396 (Ala.Crim.App.2012), this Court stated:

"The Sixth Amendment right to counsel 'attaches at the initiation of adversary judicial proceedings, and extends to every critical stage of the proceedings.... A critical stage is any stage where a substantial right of an accused may be affected ... and can arise in pre-trial as well as post-trial proceedings.' Berry v. State, 630 So.2d 127, 129 (Ala.Crim.App.1993) (internal citations omitted). 'A motion to withdraw a guilty plea is a critical stage in a criminal proceeding requiring representation of counsel or a valid waiver of the right to counsel.' Berry, 630 So.2d at 129.
"In Ex parte Pritchett, 117 So.3d 356 (Ala.2012), the Alabama Supreme Court recently discussed a case that is factually indistinguishable from Humphrey's. The facts in Pritchett were as follows:
" '[c]ounsel in [Pritchett's] case was appointed for [Pritchett], and at no point before the filing and adjudication of the motion to withdraw the guilty plea did counsel formally withdraw. Nonetheless, Pritchett filed a motion to withdraw his guilty plea that, in this case, we know was handwritten and that explicitly stated that it was being filed as a "pro se" motion. Furthermore, we also know that, in this case, the ground for relief asserted in this motion was that counsel who had represented the defendant before the filing of the motion allegedly had been inadequate and ineffective. As in Berry, although Pritchett nominally had counsel of record at the time he filed his motion, it was clear that the motion was prepared and relief was sought by Pritchett without the involvement of that counsel.'
" 117 So.3d at 361. The Supreme Court held that Pritchett was required to have the assistance of counsel-or to have validly waived such assistance-during the proceedings surrounding the motion to withdraw his guilty plea because Pritchett's motion to withdraw his guilty plea was a critical stage in the judicial proceedings. Id. Therefore, the Supreme Court reversed Pritchett's conviction and ordered 'a hearing on Pritchett's motion to withdraw his guilty plea in which Pritchett is represented by counsel or in which the trial court determines that Pritchett has knowingly, intelligently, and voluntarily waived his right to counsel.' Pritchett, 117 So.3d at 362."

110 So.3d at 398.

In this case, as in Ex parte Pritchett, 117 So.3d 356 (Ala.2012), Humphrey, and similar cases, Colburn filed a pro se motion to withdraw his guilty plea. See also Pate v. State, 186 So.3d 986 (Ala.Crim.App.2015) ; Bailey v. State, 214 So.3d 377 (Ala.Crim.App.2015) ; Stewart v. State, 110 So.3d 395 (Ala.Crim.App.2012) ; and Frost v. State, 141 So.3d 1103 (Ala.Crim.App.2012). The motion was filed before Colburn's appointed counsel had withdrawn from his representation of Colburn. The record does not show that Colburn expressly waived his right to the assistance of counsel, nor does the record establish that the circuit court inquired into whether Colburn had knowingly, intelligently, and voluntarily waived his right to counsel. Therefore, this case is remanded with instructions for that court to ensure that Colburn is represented by counsel or that he knowingly and voluntarily waives his right to counsel before a ruling on the motion is issued. Colburn should be afforded the opportunity to file a new motion to withdraw his guilty plea through the assistance of counsel should Colburn wish to do so. The circuit court may hold a hearing if necessary. Due return shall be filed within 56 days of the date of this opinion and shall include the circuit court's written order granting or denying relief and a transcript of a hearing, if held.

REMANDED WITH INSTRUCTIONS.

WINDOM, P.J., and KELLUM, BURKE, and JOINER, JJ., concur.

      Note from the reporter of decisions: On August 4, 2016, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.