Allen v. Johnny Baker Hauling, Inc.

CourtAlabama Court of Civil Appeals
Writing for the CourtJ. ED TEASE
Citation545 So.2d 771
PartiesJ.G. ALLEN, Director, State Department of Industrial Relations v. JOHNNY BAKER HAULING, INC. Civ. 6679.
Decision Date26 April 1989

Page 771

545 So.2d 771
J.G. ALLEN, Director, State Department of Industrial Relations
v.
JOHNNY BAKER HAULING, INC.
Civ. 6679.
Court of Civil Appeals of Alabama.
April 26, 1989.
Rehearing Denied May 31, 1989.

George Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, State of Alabama Dept. of Indus. Relations, for appellant.

J.R. Herring of Herring, Bennett & Young, Dothan, for appellee.

J. ED TEASE, Retired Circuit Judge.

From a final assessment issued by the Department of Industrial Relations (Department) after administrative hearing, appellee-employer appealed to the Circuit Court of Houston County. Appellant-Department moved to dismiss the appeal as not having been timely perfected with both the circuit court and the Director as required by section 25-4-134(c)(3)b. The trial

Page 772

court overruled the Department's motion to dismiss, finding "that the late service on [Department] of [employer's] Notice of Appeal should be excused on [grounds of equitable estoppel]." Although the trial court later rendered judgment on the merits in favor of appellee-employer, the only issue presented on appeal by the Department is the failure of the trial court to dismiss employer's appeal to the circuit court as not having been timely perfected as required by statute.

The chronology of events with which we are concerned is as follows: After the Department issued an unemployment compensation contribution assessment of $29,220.23 to the employer on July 15, 1986, employer requested and received an administrative hearing before a Department hearing officer on August 14, 1986. By letter dated September 2, 1986, the hearing officer notified employer that the evidence had failed to show why the assessment "should not become final." The letter referred employer and its attorney to the provisions of section 25-4-134, Ala.Code (1975), and set out employer's right to appeal "within thirty (30) days of the date of the final assessment" in either the Circuit Court of (Houston County) or (Montgomery County). The actual document of final assessment was issued by the Department on September 8, 1986, and mailed by certified mail to employer. The final assessment contained the following language:

"If you are dissatisfied with said final assessment and timely protest the same, an appeal therefrom may be taken within thirty days from the date of said final assessment, pursuant to the provisions of Code of Alabama 1975, § 25-4-134(c)(3)."

On September 26, 1986, employer filed its notice of appeal in the Circuit Court of Houston County. The supersedeas bond it filed was marked "filed and approved" by the clerk of the court on September 30, 1986.

On October 7, 1986, the trial judge entered an order staying execution of the assessment.

On October 9, 1986, the Houston County Circuit Court Clerk mailed a summons and a copy of the notice of appeal to the Sheriff of Montgomery County, and service was obtained on the Department October 14, 1986.

The Department filed its motion to dismiss on October 23, asserting that the circuit court was without jurisdiction to act on the appeal due to the employer's failure to comply with provisions of section 25-4-134(c)(3), which required notice of appeal to be filed with the circuit court and with the Director of the Department "within thirty days of the final assessment made and entered on the minutes of the Department."

At the hearing on the Department's motion to dismiss, employer offered the testimony of the hearing officer and the field deputy of the Department who had been assigned to the case. The evidence offered was without substantial conflict. The trial court overruled the motion to dismiss, from which the Department appeals, presenting two closely related issues: (1) that employer's failure to timely serve its notice of appeal on the Department within thirty days of the final assessment left the trial court without jurisdiction to determine the case on the merits, and (2) the trial court erred in applying the doctrine of equitable estoppel to excuse the untimely service of notice of appeal on the Department.

In addition, the Department asserts that the trial court's ruling is not entitled to a presumption of correctness because the ruling concerned questions of law and was based on undisputed facts.

As to our standard of review in this matter, we agree with the Department that the trial court's ruling on the motion to dismiss is not entitled to a presumption of correctness. The ruling involved the application of Alabama law to undisputed facts.

In Imperial Group, Ltd. v. Lamar Corp., 347 So.2d 988, 989 (Ala.1977), Justice Bloodworth quoted approvingly the following from 28 Am.Jur.2d Estoppel and Waiver § 149 (1966):

"Generally speaking, the existence of an estoppel in pais is a mixed question of

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law and fact.... Unless only one reasonable inference can be drawn from the evidence, estoppel is a question for the triers of the facts, the jury or the trial court. On the other hand, if the facts are undisputed and only one reasonable inference in such respect can be...

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45 practice notes
  • Dgb Llc v. Hinds, 1081767.
    • United States
    • Supreme Court of Alabama
    • June 30, 2010
    ...to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the comp......
  • Marks v. Tenbrunsel, 1031515.
    • United States
    • Supreme Court of Alabama
    • April 22, 2005
    ...to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed mos......
  • Altrust Fin. Servs., Inc. v. Hughes, 1091610
    • United States
    • Supreme Court of Alabama
    • July 29, 2011
    ...to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989).”Nance, 622 So.2d at 299.Case No. 1091759 The plaintiffs sued all the defendants asserting a claim of securities fraud u......
  • Cove Properties, Inc. v. Walter Trent Marina, Inc.
    • United States
    • Alabama Court of Civil Appeals
    • August 22, 1997
    ...to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed mos......
  • Request a trial to view additional results
45 cases
  • Dgb Llc v. Hinds, 1081767.
    • United States
    • Supreme Court of Alabama
    • June 30, 2010
    ...to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the comp......
  • Marks v. Tenbrunsel, 1031515.
    • United States
    • Supreme Court of Alabama
    • April 22, 2005
    ...to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed mos......
  • Altrust Fin. Servs., Inc. v. Hughes, 1091610
    • United States
    • Supreme Court of Alabama
    • July 29, 2011
    ...to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989).”Nance, 622 So.2d at 299.Case No. 1091759 The plaintiffs sued all the defendants asserting a claim of securities fraud u......
  • Cove Properties, Inc. v. Walter Trent Marina, Inc.
    • United States
    • Alabama Court of Civil Appeals
    • August 22, 1997
    ...to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed mos......
  • Request a trial to view additional results

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