City of Birmingham Ret. & Relief Sys. v. McGough

• Citation: 232 So.3d 838
• Decision Date: 17 March 2017
• Docket Number: 1150997
• Parties: The CITY OF BIRMINGHAM RETIREMENT AND RELIEF SYSTEM v. Kevin MCGOUGH
• Court: Supreme Court of Alabama

232 So.3d 838

The CITY OF BIRMINGHAM RETIREMENT AND RELIEF SYSTEM

v.Kevin MCGOUGH

1150997

Supreme Court of Alabama.

March 17, 2017

James D. Love, Birmingham, for appellant.

Bernard D. Nomberg and David P. Nomberg of The Nomberg Law Firm, Birmingham, for appellee.

PARKER, Justice.

The City of Birmingham Retirement and Relief System ("the Retirement System") appeals the Jefferson Circuit Court's judgment in favor of Kevin McGough. We reverse and remand.

Facts and Procedural History

McGough, then a firefighter employed by the City of Birmingham ("the city"), alleges that he sustained an injury to his left knee on April 30, 2011, during the course of his employment. For approximately one year after he injured his left knee, McGough received medical treatment from numerous doctors and continued to work as much as he was able.

On August 20, 2012, McGough filed a claim with the Retirement System for extraordinary-disability benefits¹ and ordinary-disability benefits² to be paid out of "the retirement and relief fund." See § 45–37A–51.120(a)(27), Ala. Code 1975 (Local Laws, Jefferson County). McGough signed a form entitled "disability procedure" that stated that "[t]he Retirement and Relief Pension Board³ is the authoritative entity which will consider the medical evidence and determine whether you will be approved to receive a disability benefit." The "disability-procedure" form also stated: "I understand that if my disability claim is denied, ... I have the opportunity to appeal the Board's decision, through the circuit court, within 90 days of the denial of my claim."

On November 14, 2012, the Retirement System denied McGough's request for extraordinary-disability benefits and granted McGough's request for ordinary-disability benefits. It is undisputed that the Retirement System did not notify McGough by certified mail of its decision.⁴ Instead, on November 26, 2012, Lorren Oliver, the Retirement System's secretary, sent McGough a non-certified letter stating that the Retirement System "approved your application for ordinary disability at the rate of $722.31 per month, effective September 22, 2012, ... based on the doctor's recommendation."

On February 18, 2013, less than 90 days after McGough received Oliver's letter dated November 26, 2012, McGough sent a letter to Oliver stating:

"This is in response to your letter dated November 26, 2012, in reference to the ... Retirement ... System's denial of my application for extraordinary disability. I wish to appeal the [Retirement System's] decision and request information as to the appeal process as well as any other information I need to formally appeal.

"If nothing more than this letter is required it will stand as formal request for the appeal of the [Retirement System's] decision."

McGough received nothing from the Retirement System in response to his February 18, 2013, letter.

On July 15, 2013, McGough sent another letter to Oliver. McGough's letter stated that he had not received a certified letter notifying him of the Retirement System's denial of his application for extraordinary-disability benefits and that, in February 2013, he had telephoned the Retirement System "to inquire about the certified letter." McGough's letter states that he was told by an employee of the Retirement System that she "would make sure [the certified letter] gets sent and that [McGough] would have 30 days from the date of the letter to appeal." McGough's letter further states that, "[a]s of July 10, 2013, [he] still [had] not received the certified letter." McGough requested a certified letter from the Retirement System "so that [he could] proceed with the appeal process." On the same day, McGough sent the same letter to Sandy Roberts, an employee of the Retirement System.

On August 1, 2013, McGough's attorney e-mailed Oliver and Roberts, requesting that McGough be permitted to appeal the Retirement System's decision denying McGough's application for extraordinary-disability benefits.

On December 3, 2013, more than one year after the Retirement System's final decision denying McGough's application for extraordinary-disability benefits, the Retirement System sent McGough a certified letter. The parties submitted to the circuit court two different certified letters sent by the Retirement System to McGough, both dated December 3, 2013. One notified him of the Retirement System's November 14, 2012, decision to approve McGough's application for ordinary-disability benefits; the other notified him of the Retirement System's November 14, 2012, decision to deny McGough's application for extraordinary-disability benefits. The latter certified letter was delivered to McGough on December 5, 2013.

On July 15, 2014, in accordance with § 45–37A–51.139, Ala. Code 1975 (Local Laws, Jefferson County), McGough filed a mandamus petition in the Jefferson Circuit Court ("the circuit court") in an effort to challenge the Retirement System's decision denying his application for extraordinary-disability benefits.

On August 18, 2014, the Retirement System filed a motion to dismiss McGough's mandamus petition or, in the alternative, for a summary judgment. The Retirement System argued that McGough's mandamus petition was barred as untimely under § 45–37A–51.139(a). On October 22, 2014, following a hearing, the circuit court denied the Retirement System's motion to dismiss or, in the alternative, for a summary judgment.

On December 5, 2014, the Retirement System petitioned this Court for a writ of mandamus directing the circuit court to dismiss McGough's challenge to the Retirement System's decision to the circuit court as untimely. This Court denied the Retirement System's petition for a writ of mandamus, without an opinion. See Ex parte City of Birmingham Ret. & Relief Sys. (No. 1140223, June 30, 2015), 215 So. 3d 1026 (Ala. 2015)(table).

On October 30, 2015, the Retirement System again filed in the circuit court a motion to dismiss or, in the alternative, for a summary judgment, arguing that McGough's mandamus petition challenging the Retirement System's decision was barred under § 45–37A–51.139(a) as untimely. On November 27, 2015, McGough filed a response to the Retirement System's motion. On November 30, 2015, following a hearing, the circuit court denied the Retirement System's motion to dismiss or, in the alternative, for a summary judgment.

On May 9, 2016, following a bench trial, the circuit court granted McGough's petition for a writ of mandamus and ordered that the Retirement System grant McGough's application for extraordinary-disability benefits. The circuit court again held that McGough had "timely and properly appealed his request for a determination of extraordinary disability benefits."

On May 23, 2016, McGough filed a motion to tax costs. McGough requested reimbursement for $5,497.79 in costs and supported his motion with extensive documentary evidence. On June 6, 2016, the circuit court granted McGough's motion. Also on June 6, 2016, the Retirement System filed a motion requesting that the circuit court reconsider its order granting McGough's motion to tax costs. On June 22, 2016, after the Retirement System had filed its notice of appeal, the circuit court purported to deny the Retirement System's motion.

Standard of Review

" ‘Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies.’ Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67 (Ala. 2010).

" ‘ " ‘ "[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust." ’ " Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala. 2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala. 2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala. 2002) ). " ‘The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.’ " Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala. 1985) ). "Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge's conclusions of law or the incorrect application of law to the facts." Waltman v. Rowell, 913 So.2d at 1086.'

" Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala. 2007). ‘Questions of law are reviewed de novo.’ Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala. 2004)."

Moultrie v. Wall, 172 So.3d 828, 839 (Ala. 2015).

Discussion

The appeals process from a final decision by the Retirement System is set forth in § 45–37A–51.139. The first issue raised by the Retirement System concerns the timeliness of McGough's petition for a writ of mandamus challenging the Retirement System's denial of McGough's application for extraordinary-disability benefits. Section 45–37A–51.139(a) sets forth the following procedure for challenging a final decision of the Retirement System:

"Any decision of the board denying a benefit claimed may be subject to review by the circuit court, in the manner and subject to the limitations herein provided. An employee may secure a review of a decision of the board by mandamus proceedings in the circuit court, which proceedings the employee shall institute, in the court by filing therein a petition for mandamus. The petition may designate the board as respondent or the members thereof as respondents. Each respondent shall be served with process, unless the respondent or his or her or its attorney accepts service. The petition for mandamus shall be barred if it is not filed within 90 days from the date whereon the board of managers makes its final decision on the benefit claimed, provided written notice of such final decision of the board shall be given by certified or registered mail, postage prepaid, and properly addressed, to the

...