Johnson v. City of Tuscaloosa

• Court: Alabama Court of Civil Appeals
• Writing for the Court: THOMPSON, PRESIDING JUDGE
• Decision Date: 04 November 2022
• Docket Number: 2200956
• Parties: Gary Lee Johnson v. City of Tuscaloosa

Gary Lee Johnson
v.
City of Tuscaloosa

No. 2200956

Alabama Court of Civil Appeals

November 4, 2022

Appeal from Tuscaloosa Circuit Court (CV-21-89)

THOMPSON, PRESIDING JUDGE

Gary Lee Johnson appeals the judgment of the Tuscaloosa Circuit Court ("the circuit court") dismissing his appeal from a resolution adopted by the Tuscaloosa City Council ("the city council") that ordered

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the demolition of a structure located on 11th Street East ("the building"). We reverse and remand.

On May 4, 2021, the city council adopted a resolution finding the building to be unsafe and a public nuisance and ordering its demolition. On May 14, 2021, Johnson, the owner of the building, acting pro se, filed a document, entitled "complaint," in the circuit court, which was treated as initiating an appeal of the city council's resolution pursuant to § 11-53B-4, Ala. Code 1975. The document named the mayor of Tuscaloosa and the city council as defendants.^[1] In the body of the document, Johnson discussed the difficulties he had experienced in trying to maintain and repair the building and asked the circuit court to "[p]lease help [him] save [his] home." Johnson submitted with the document an affidavit of substantial hardship requesting a waiver of the requirement under § 11-53B-4 that he file a "bond for security of costs." That same day the clerk of the circuit court docketed Johnson's appeal. On May 24, 2021, the

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circuit court entered an order finding that Johnson was indigent and waiving the requirement under § 11-53B-4 that he file a bond as security for costs.

On June 11, 2021, the City of Tuscaloosa ("the city") filed a motion to dismiss, alleging, among other things, that because, pursuant to § 11-53B-4, Johnson's appeal from the May 4, 2021, resolution had to be perfected within 10 days of the city council's decision, i.e., by May 14, 2021, and, it said, Johnson's appeal had not been perfected until the circuit court granted him a waiver of the bond requirement on May 24, 2021, Johnson's appeal was untimely and, therefore, due to be dismissed.^[2] The city attached a copy of the May 4, 2021, resolution to its motion to dismiss. On July 6, 2021, Scott Holmes, an attorney for the city, accepted service of Johnson's appeal.

On July 7, 2021, the circuit court conducted a hearing to address the city's motion to dismiss. Johnson was present at the hearing. After

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considering the parties' arguments, the circuit court found that Johnson's appeal had not been timely perfected, and it dismissed the appeal. A transcript of that hearing is not included in the record.

On August 13, 2021, Johnson filed a notice of appeal to the Alabama Supreme Court. On August 31, 2021, the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975. On August 10, 2022, this court conducted oral argument.

The city's motion to dismiss was filed pursuant to Rule 12(b)(1), Ala. R. Civ. P., and it sought the dismissal of Johnson's appeal of the May 4, 2021, resolution on the ground that Johnson had not timely perfected his appeal and, therefore, the circuit court had never acquired subject-matter jurisdiction over the appeal. See Clanton v. DeAngelo, 984 So.2d 451, 453 (Ala. Civ. App. 2007)(explaining that a party must timely file a notice of appeal to invoke the subject-matter jurisdiction of a circuit court serving as an appellate court), and Smith v. Estes, 47 So.3d 1251, 1252-53 (Ala. Civ. App. 2010). Whether a circuit court acquires subject-matter jurisdiction over an appeal presents a question of law; thus, we conduct a de novo review of the circuit court's judgment dismissing Johnson's

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appeal. Banks v. Estate of Woodall, 129 So.3d 294, 295-96 (Ala. Civ. App. 2013).

On appeal Johnson contends that the circuit court erred in dismissing his appeal because, he says, by filing his "complaint" and an affidavit of substantial hardship requesting a waiver of the bond requirement within 10 days of the adoption of the city council's resolution, he satisfied the requirements of § 11-53B-4 to perfect his appeal. The city maintains that the circuit court properly dismissed Johnson's appeal on the ground that it was not timely perfected because, it says, Johnson did not file the statutorily required bond or obtain a waiver of the bond requirement within 10 days of the adoption of the city council's resolution.^[3]

It is undisputed that Johnson filed his "complaint" and his affidavit of substantial hardship requesting a waiver of the bond requirement within 10 days of the adoption of the city council's resolution ordering the demolition of the building. The parties do not dispute that § 11-53B-4

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requires that, to invoke the circuit court's jurisdiction, a party appealing the decision of a governing body must file a notice of appeal within 10 days of the governing body's decision and that Johnson satisfied this requirement. The parties do dispute whether the timely filing of a "bond for security of costs" is a jurisdictional requirement for perfecting an appeal under § 11-53B-4 and, if so, whether the filing an affidavit of substantial hardship requesting a waiver of the bond requirement within 10 days of a governing body's decision adequately satisfies the requirement.

First, we consider whether the provision in § 11-53B-4 requiring a party to file a "bond for security of costs" within 10 days of the governing body's decision sets forth a jurisdictional or procedural requirement. Consideration of this issue involves statutory interpretation.

"In interpreting a statute, [an appellate court] must ascertain and effectuate the intent of the Legislature as expressed by the statute. Employees' Retirement Sys. of Alabama v. Head, 369 So.2d 1227 (Ala. 1979). When determining legislative intent from the language used in a statute, a court may explain the language, but it may not detract from or add to the statute. Siegelman v. Chase Manhattan Bank (USA), Nat'l Ass'n, 575 So.2d 1041, 1045 (Ala. 1991). When the language is clear, there is no room for judicial construction. Employees' Retirement System, 369 So.2d at 1228.

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Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 607 (Ala. 2002).

Johnson's appeal was filed pursuant to § 11-53B-4, which provides, in pertinent part:

"In the event that it is determined by the governing body that the building or structure is unsafe to the extent that it is a public nuisance, the governing body shall order the building or structure to be repaired or demolished, as the case may be. The repairs or demolition may be accomplished by the municipality by contract for the repairs or demolition. The municipality shall have authority to sell or otherwise dispose of salvaged materials resulting from any demolition hereunder.

"Any person aggrieved by the decision of the governing body at the hearing may, within 10 days thereafter, appeal to the circuit court upon filing with the clerk of the court notice of the appeal and bond for security of costs in the form and amount to be approved by the circuit clerk. Upon filing of the notice of appeal and approval of the bond, the clerk of the court shall serve a copy of the notice of appeal on the clerk of the city and the appeal shall be docketed in the court, and shall be a preferred case therein."

Section 11-53B-4 is silent as to whether the filing of the "bond for security of costs" is a jurisdictional requirement. Cf. § 40-2A-7(b)(5)c.1., Ala. Code 1975 (identifying certain requirements as jurisdictional). To support its contention that § 11-53B-4 requires the timely filing of the bond or the timely approval of a waiver of the bond requirement to perfect

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an appeal, the city cites Lumpkin v. State, 171 So.3d 599 (Ala. 2014), a case that required our supreme court to consider whether a taxpayer, who, pursuant to § 40-3-25, Ala. Code 1975, had timely filed his notices of appeal in the appropriate circuit court but had not timely filed the statutorily required bonds, had perfected his appeal. In Lumpkin, the taxpayer filed in the circuit court notices of appeal from three property-tax assessments of the Jefferson County Board of Equalization. Section 40-3-25 provides that a taxpayer, when appealing such a decision, "shall," within 30 days of the board's decision, "file notice of said appeal with the secretary of the board of equalization and with the clerk of the circuit court and … file bond to be filed with and approved by the clerk of the circuit court, conditioned to pay all costs." Additionally, § 40-3-25 provides:

"When an appeal is taken, the taxpayer shall pay the taxes due as fixed for assessment for the preceding tax year before the same becomes delinquent; and, upon failure to do so, the court upon motion ex mero motu must dismiss the appeal, unless at the time of taking the appeal the taxpayer has executed a supersedeas bond with sufficient sureties to be approved by the clerk of the circuit court in double the amount of taxes."

Although the taxpayer filed the notices of appeal within the requisite time, he did not timely file the requisite bonds. The circuit court

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dismissed the taxpayer's appeals based on the taxpayer's failure to timely file the bonds.

On appeal, the taxpayer asked our supreme court to determine whether or not the filing of the bond set forth in § 40-3-25 is a jurisdictional requirement for perfecting an appeal. The supreme court observed that, to perfect an appeal pursuant to § 40-3-25, an appealing taxpayer must complete multiple acts within 30 days of the final decision of the board of equalization: "1) the filing of a notice of appeal with the secretary of the board of equalization; 2) the filing of a notice of appeal with the circuit court; and 3) the filing of a bond with the circuit court." 171 So.3d at 605. The supreme court held that § 40-3-25 requires the filing of a bond,...