Charter HR, Inc. v. Ala. Dep't of Labor (Ex parte Ala. Dep't of Labor)

• Court: Alabama Court of Civil Appeals
• Writing for the Court: DONALDSON, Judge.
• Citation: Charter HR, Inc. v. Ala. Dep't of Labor (Ex parte Ala. Dep't of Labor), 214 So.3d 356 (Ala. Civ. App. 2015)
• Decision Date: 09 October 2015
• Docket Number: 2140907.
• Parties: Ex parte ALABAMA DEPARTMENT OF LABOR (formerly the Alabama Department of Industrial Relations). (In re Charter HR, Inc. v. Alabama Department of Labor (formerly the Alabama Department of Industrial Relations)).

214 So.3d 356

Ex parte ALABAMA DEPARTMENT OF LABOR (formerly the Alabama Department of Industrial Relations).

(In re Charter HR, Inc.

v.Alabama Department of Labor (formerly the Alabama Department of Industrial Relations)).

2140907.

Court of Civil Appeals of Alabama.

Oct. 9, 2015.

Joseph S. Ammons, gen. counsel, and Arthur F. Ray II, asst. gen. counsel, Alabama Department of Labor, for petitioner.

Randall S. Haynes and Nancy L. Eady of Morris, Haynes, Hornsby, Wheeles & Knowles, Alexander City, for respondent.

DONALDSON, Judge.

The Alabama Department of Labor ("ADOL")¹ petitions this court for the writ of mandamus directing the Tallapoosa Circuit Court ("the trial court") to grant its motion to dismiss an appeal filed in the trial court by Charter HR, Inc. ("Charter"). In that appeal, Charter seeks a review of an administrative determination and final assessment by ADOL that imposed unemployment-compensation taxes against Charter. Because the materials properly before this court show that Charter did not comply with the statutory requirements to invoke the jurisdiction of the trial court, we grant the petition and issue the writ.

Facts and Procedural History

The relevant facts before us are as follows. A dispute existed between ADOL and Charter as to the proper assessment that should be imposed on Charter for unemployment-compensation tax purposes. See generally § 25–4–8, Ala.Code 1975. On December 21, 2012, ADOL sent a letter to Charter via certified mail notifying Charter that an assessment had been entered calculating Charter's unemployment-compensation tax rate. The letter also specifically stated:

"Should you be dissatisfied with the decision and final assessment as fixed, I call your attention to the provisions of Section 25–4–134, Code of Alabama 1975, which provides that you are entitled to an appeal from this decision. Any appeal must be tried to Circuit Court and initiated within thirty (30) days of the date of the final assessment made by the Alabama Department of Labor."

Section 25–4–134(c)(3) b., Ala.Code 1975, provides, in pertinent part:

"If an employer against whom an assessment is made by the director is dissatisfied with the final assessment as fixed by the director under any of the provisions of subdivision (1) of this subsection (c) and duly protests the fixing of the same, he may appeal from said final assessment to the Circuit Court of Montgomery County, or to the circuit court of the county in which the employer resides or has his principal place of business, if the employer has within the state a permanent residence, at the option of the employer, by filing notice of appeal with the director and with the register of the circuit court of the county to which appeal shall be taken, within 30 days of the date of the final assessment made and entered on the minutes of the department, and in addition thereto by giving bond conditioned to pay all costs, to be filed with and approved by the register or clerk of the court to which the appeal shall be taken."

It is undisputed that Charter is an employer for purposes of that statute and that its principal place of business is in Tallapoosa County.

On January 18, 2013, which was within 30 days of December 21, 2012, the date ADOL sent its assessment letter, Charter filed a notice of appeal in the trial court seeking judicial review of the administrative determination and final assessment. The notice of appeal was served on the director of ADOL on January 23, 2013, which was 33 days after December 21, 2012.

On February 8, 2013, ADOL filed its first motion to dismiss Charter's appeal. In that motion, ADOL claimed that the supersedeas bond submitted by Charter was not sufficient pursuant to § 25–4–134(c)(3), Ala.Code 1975. The trial court denied that motion on February 22, 2013. ADOL petitioned this court, seeking a writ of mandamus directing the trial court to grant the motion to dismiss, which this court denied. See Ex parte Alabama Dep't of Labor, 141 So.3d 1058 (Ala.Civ.App.2013).

On November 12, 2014, ADOL filed a second motion to dismiss the appeal in the trial court. In that motion, ADOL alleged that Charter's appeal was untimely under § 25–4–134(c)(3) b. because the notice of appeal was not filed with the director within the time required by the statute and that, therefore, the trial court did not have subject-matter jurisdiction over the appeal. Charter filed a response in opposition to ADOL's motion on December 17, 2014. The trial court denied the motion on June 30, 2015. ADOL petitioned this court for the writ of mandamus on August 7, 2015.

Standard of Review

"The denial of a motion to dismiss for lack of jurisdiction is reviewable upon a timely filed petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000) ; Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 57 (Ala.2006). With regard to an appellate court's consideration of a petition for a writ of mandamus, our supreme court has stated:

" ‘This 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)...."

Ex parte Diefenbach, 64 So.3d 1091, 1093 (Ala.Civ.App.2010).

Discussion

Section 25–4–134(c)(3) b. requires that a notice of appeal be filed in the appropriate circuit court and with the director of ADOL within 30 days of "the date of the final assessment made and entered on the minutes of the department." ADOL contends that the letter sent to Charter via certified mail dated December 21, 2012, notifying Charter of the administrative determination and final assessment was the date from which the calculation of time should be made to determine whether Charter filed a timely appeal. Although Charter filed its notice of appeal in the trial court within 30 days of December 21, 2012, Charter's notice of appeal was not filed with the director of ADOL until January 23, 2013, or 33 days after December 21, 2012. In response, Charter asserts that ADOL has failed to establish the date on which the administrative determination and final assessment was "made and entered on the minutes of the department." This court has previously addressed this issue:

"Taxpayer contends that the State's motion to dismiss should not have been granted since it does not specifically appear in the complaint or in the Final Assessment Notice, nor was it alleged in the motion to dismiss that the final assessment was ever ‘entered on the minutes of the department.’ By the terms of the statute, if the assessment has not been entered in the minutes, the time has not yet run for invoking the jurisdiction of the circuit court on appeal. However, we do not consider that the ‘entering on the minutes' provision requires a formal entry in a book of minutes comparable to that of corporate meetings. There is no indication that the Department has ever kept such ‘minutes.’ ‘Minutes' may be viewed as simply ‘the written memoranda of the assessment of the ... tax.’ Howell & Graves, Inc. v. Curry, 242 Ala. 122, 5 So.2d 105 (1941). The final assessment and the official notice thereof received by Taxpayer are permanent records of the department and are ‘minutes' sufficient for the statute. See City of Talladega v. Jackson–Tinney Lumber Co., 209 Ala. 106, 95 So. [ ] 455 (1923)."

Mitchell v. State, 351 So.2d 599, 601 (Ala.Civ.App.1977). Accordingly, ADOL's administrative determination and final assessment was "made and entered on the minutes of the department" on December 21, 2012, making Charter's notice of appeal from that administrative determination and final assessment due within 30 days from that date. We note that the 30th day following December 21, 2012, fell on Sunday, January 20, 2013, and that Monday, January 21, 2013, was a legal holiday. Section 1–1–4, Ala.Code 1975 provides, in part:

"Time within which any act is provided by law to be done must be computed by excluding the first day and including the last. However, if the last day is Sunday, or a legal holiday ..., or a day on which the office in which the act must be done shall close as permitted by any law of this state, the last day also must be excluded, and the next succeeding secular or working day shall be counted as the last day within which the act may be done."

Therefore, Charter was required to file the notice of appeal with the trial court and the director no later than Tuesday, January 22, 2013. See Ex parte Tellabs Operations, Inc., 84 So.3d 53, 57 (Ala.2011) ("Alabama courts previously have held that filing deadlines provided by statute are to be read in pari materia with § 1–1–4, Ala.Code 1975.").

In Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771 (Ala.Civ.App.1989), this court addressed the issue whether a

"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 [of Industrial Relations].’ "

545 So.2d at 772. In Allen, a final assessment was issued by the Alabama Department of Industrial Relations ("ADIR"), the predecessor to ADOL (see note 1, supra), on September 8, 1986, and mailed by certified mail to employer. On September 26, 1986, the employer filed its notice of appeal in the circuit court; however, the notice of appeal was not served upon the director of ADIR until October 14, 1986. ADIR filed a motion to dismiss the appeal, asserting that the circuit court was without jurisdiction to act on the appeal because of...