State ex rel. Marshall v. Ty Green's Massage Therapy, Inc.

• Citation: 332 So.3d 413
• Decision Date: 12 February 2021
• Docket Number: 1180921
• Parties: STATE of Alabama EX REL. Attorney General Steve MARSHALL v. TY GREEN'S MASSAGE THERAPY, INC., Yuping Tang, and Jiao Liu a/k/a Serena Tang
• Court: Alabama Supreme Court

332 So.3d 413

STATE of Alabama EX REL. Attorney General Steve MARSHALL

v.TY GREEN'S MASSAGE THERAPY, INC., Yuping Tang, and Jiao Liu a/k/a Serena Tang

1180921

Supreme Court of Alabama.

February 12, 2021

Steve Marshall, att'y gen., and Edmund G. LaCour, Jr., solicitor gen., and Audrey Jordan and Michael G. Dean, asst. att'ys gen., for appellant.

Chris Messervy, Huntsville, for appellees TY Green's Massage Therapy, Inc., and Yuping Tang; and R. David McDowell, Huntsville, for appellee Jiao Liu a/k/a Serena Tang.

PER CURIAM.

The State appeals from an order of the Madison Circuit Court denying its request for a preliminary injunction against TY Green's Massage Therapy, Inc., Yuping Tang, and Jiao Liu a/k/a Serena Tang (collectively referred to as "the defendants"). We affirm the trial court's order.

Facts

Yuping Tang and her daughter, Jiao Liu a/k/a Serena Tang, owned and operated a business that was incorporated as TY Green's Massage, Inc. The business had four locations: one on University Drive in Huntsville, one on South Parkway in Huntsville, one in Madison, and one in Decatur. In September 2018, the Madison Police Department received an anonymous tip that a customer had gone into the defendants’ Madison location for a massage and that he had been touched inappropriately. As a result, the department started an investigation of TY Green's Massage Therapy that included, among other things, sending multiple men into the business locations undercover to get massages and conducting surveillance of the business locations and of the houses where the employees of the business were housed.

During the investigation, some of the massage therapists touched clients in places they were not supposed to touch according to Board of Massage Therapy guidelines; that some massage therapists straddled clients and/or touched the clients with the intimate parts of their bodies and/or touched the intimate parts of the clients’ bodies; and that at least one massage therapist engaged in sexual acts, including intercourse, with a client. The investigation also revealed that the massage therapists lived in houses owned by the Tangs; that the Tangs provided transportation for the therapists each day to get to the business locations where they worked; and that the therapists normally worked 12 hours per day, 7 days per week.

Procedural History

On April 17, 2019, the State, by and through Attorney General Steve Marshall, filed a complaint in the Madison Circuit Court against TY Green's Massage Therapy, Inc., doing business as Massage Foot Care and/or Massage and Foot Care Spa, Health Massage, SO Massage, and/or Massage Spa; Yuping Tang; and Jiao Liu a/k/a Serena Tang. The complaint set forth 41 counts, including 13 counts alleging first-degree human trafficking, violations of § 13A-6-152, Ala. Code 1975; 26 counts alleging second-degree human trafficking, violations of § 13A-6-153, Ala. Code 1975; and 2 counts alleging deceptive trade practices, violations of § 8-19-5(27), Ala. Code 1975. Among other things, the State requested injunctive and declaratory relief, damages, and civil penalties.

In the complaint, the State alleged that the defendants were operating "illicit massage businesses that serve as fronts for a human trafficking operation." Specifically, it contended:

"In the Defendants’ organization, the ‘employees’ work incredibly long hours during which at least some of them are expected to engage in sex acts with the businesses’ customers. When the victims are not ‘Working,’ they seem to have little freedom of movement; they are transported in groups to and from the Defendants’ businesses and are kept in houses owned by the Defendants where they are left to eat and sleep in terrible conditions. The Defendants, on the other hand, have reaped millions of dollars in revenue from their businesses, and the Attorney General now brings this action in order to put an end to their conduct and protect their victims from further harm."

The State also alleged that the defendants’ actions violate Alabama's Deceptive Trade Practices Act. See § 8-19-1 et seq., Ala. Code 1975. In particular, it asserted:

"The Deceptive Trade Practices Act authorizes the Office of the Attorney General to seek a temporary restraining order, as well as preliminary and permanent injunctive relief, when it has reason to believe that a person or business is engaging in any act or practice declared to be unlawful under the Deceptive Trade Practices Act. Ala. Code § 8-l9-8(a). Section 8-19-5(27) of the Deceptive Trade Practices Act specifically prohibits engaging in any ‘unconscionable ... act or practice in the conduct of trade or commerce.’ It is, without a doubt, unconscionable to coerce immigrant women into serving as virtual slaves in furtherance of one's business. For that reason, too, the State brings this action to stop the Defendants’ ongoing unlawful practices and to prevent such unlawful conduct in the future."

The State attached extensive documentation in support of the complaint. In addition to the complaint, the State also filed an "Ex Parte Motion for Temporary Restraining Order, Asset Freeze, Appointment of a Receiver, & Order to Show Cause Why a Preliminary Injunction Should Not Issue."

On April 17, 2019, the same day the complaint and ex parte motion were filed, the trial court entered an "Ex parte Temporary Restraining Order with Asset Freeze, Appointment of a Receiver, Other Equitable Relief, and Order to Show Cause Why a Preliminary Injunction Should Not Issue." The order was executed, and the receiver and law-enforcement officers went to each of the business locations and residences and seized, among other things, cellular telephones, electronic devices, money, and vehicles.

After several continuances, the trial court conducted a hearing on whether to issue a preliminary injunction on August 12 and 14, 2019. Thereafter, on August 16, 2019, it entered the following order:

"This case came on for hearing for consideration of the petition filed by the State of Alabama Attorney General (hereinafter ‘State of Alabama’) for a preliminary injunction against Defendants, TY Green's Massage Therapy, Inc., Yuping Tang, and Liu Jiao a/k/a Serena Tang. All parties were represented by counsel. Upon consideration of the evidence received ore tenus, the Court finds as follows:

"On April 17, 2019, the State of Alabama filed its Verified Complaint for Injunctive, Declaratory or Other Relief. This Court entered the Ex Parte Temporary Restraining Order with Asset Freeze, Appointment of a Receiver, Other Equitable Relief, and Order to Show Cause Why Preliminary Injunction Should Not Issue on the same date. This Court set a preliminary injunction hearing for April 29, 2019. On April 24, 2019, counsel for the Defendant, Liu Jiao a/k/a Serena Tang, made an oral motion to continue the preliminary injunction hearing. This Court granted said request and reset the preliminary injunction hearing to June 17, 2019. On June 10, 2019, the Defendant, Liu Jiao a/k/a Serena Tang, filed a second motion to continue hearing on the preliminary injunction. This Court granted said request and reset the hearing to August 12, 2019.

"This Court must view the State of Alabama's petition for injunctive relief in light of the following requirements recognized by the Alabama Supreme Court:

" ‘A preliminary injunction should be issued only when the party seeking an injunction demonstrates: (1) that without the injunction the [party] would suffer irreparable injury; (2) that the [party] has no adequate remedy at law; (3) that the [party] has at least a reasonable chance of success on the merits of his case; and (4) that the hardship imposed on the [party opposing the preliminary injunction] by the injunction would not unreasonably outweigh the benefit accruing to the [party seeking the injunction].’

" Marathon Construction and Demolition, LLC, and OAX, LLC v. King Metal Recycling and Processing Corporation, 129 So. 3d 272, 275-276 (Ala. 2013), quoting Ormco Corp. v. Johns, 869 So. 2d 1109 (Ala. 2003).

"The Court finds that the State of Alabama has failed to carry its burden of proof on at least two of the foregoing elements. First, regarding the requirement for irreparable injury, the Alabama Supreme Court has recognized that ‘courts will not use the extraordinary power of injunctive relief merely to allay an apprehension of a possible injury; the injury must be imminent and irreparable in a court of law.’ Ormco Corp. v. Johns, 869 So. 2d at 1113-1114, quoting Martin v. City of Linden, 667 So. 2d 732, 736 (Ala. 1995). The evidence introduced by the State of Alabama failed to establish such irreparable injury.

"Second, the State of Alabama failed to establish that there is no adequate remedy at law. To the contrary, the Court is satisfied that there are adequate remedies at law, to include other civil, criminal and/or administrative remedies; i.e., the Alabama Board of Massage Therapy to revoke licenses."

(Emphasis added.)

On August 16, 2019, the State filed a notice of appeal to this Court.¹ On that same date, it also filed a motion for a stay of the action pending appeal; the trial court denied that motion on August 19, 2019. On August 21, 2019, this Court granted the State's "Emergency Motion for Stay Pending Appeal."

Standard of Review

" ‘ "The decision to grant or to deny a preliminary injunction is within the trial court's sound discretion. In reviewing an order granting a preliminary injunction, the Court determines whether the trial court exceeded that discretion." SouthTrust Bank of Alabama, N.A. v. Webb–Stiles Co., 931 So. 2d 706, 709 (Ala. 2005). As to questions of fact, the ore tenus rule is applicable in preliminary-injunction proceedings. SeeWater Works & Sewer Bd. of Birmingham v. Inland Lake Invs., LLC, 31 So. 3d 686, 689–90 (Ala. 2009). As this Court recently noted in Holiday Isle, LLC v. Adkins, 12 So. 3d 1173, 1176 (Ala. 2008), however,

" ‘ "[t]o the extent that the trial court's issuance of a

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