August 22, 2014
Alabama Department of Labor
Dental Referral Service, LLC; Dental Referral Service, LLC
Alabama Department of Labor
Appeals from Shelby Circuit Court. (CV-11-291).
S. Ammons, gen. counsel, and Donald M. Harrison III and
Arthur F. Ray II, asst. gen. counsel, for
appellant/cross-appellee Alabama Department of Labor.
Romeo, Jr., of Romeo Law Firm, LLC, Birmingham; and Stewart
Springer of Springer Law Firm, LLC, Birmingham, for
appellee/cross-appellant Dental Referral Service, LLC.
Alabama Department of Labor (" the DOL"
) appeals from a summary judgment of the
Shelby Circuit Court (" the
circuit court" ) in favor of Dental Referral Service,
LLC (" Dental Referral" ). Specifically, the
judgment found that Dental Referral was not the employer of
Debra Yancy, a dental assistant who had obtained temporary
employment with a dentist through Dental Referral in
September 2010. Dental Referral cross-appeals from the
circuit court's denial of its request for an attorney
fee. Dental Referral made the request pursuant to §
12-19-272 of the Alabama Litigation Accountability Act
(" the ALAA" ), § 12-19-270 et seq., Ala. Code
record indicates that Yancy was employed in the dental office
of Dr. Melton until she " separated" from that
employment in July 2010. Yancy filed a claim with the DOL for
unemployment compensation after that separation, and she
began receiving benefits in July 2010. In August 2010, Yancy
entered into an " independent contractor agreement"
with Dental Referral, an agency that refers dental-care
professionals such as hygienists and dental assistants for
both temporary and permanent jobs with dentists' offices.
Through Dental Referral, Yancy obtained a temporary job with
a dentist for about six days during a two- to three-week
period in September 2010. Yancy apparently did not seek
unemployment-compensation benefits during that time. On
September 26, 2010, Yancy's temporary job ended, and she
again filed a claim for unemployment-compensation benefits.
September 28, 2010, the DOL mailed Dental Referral a notice
that the claim had been filed, and it sought information
about Yancy's " separation" from employment.
Dental Referral notified the DOL that it was not Yancy's
employer. Nonetheless, on October 12, 2010, the DOL made a
determination that Dental Referral was Yancy's employer.
Dental Referral challenged the DOL's determination, but
it did not deny that Yancy was entitled to receive
unemployment-compensation benefits. We note that Yancy is not
and never has been a party in this matter.
January 2011, a hearing was held before a DOL hearing
officer, who determined that Dental Referral was Yancy's
employer. After the State Board of Appeals for the DOL denied
Dental Referral's request for a hearing, Dental Referral
appealed the finding to the circuit court. Dental Referral
filed a properly supported motion for a summary judgment,
which the circuit court granted in August 2013, entering the
judgment finding that Dental Referral had not been
Yancy's employer. The DOL appealed the judgment to this
of several hearings before the circuit court, the DOL
acknowledged that all the unemployment-compensation benefits
it had paid to Yancy in 2010 were " charged solely to
Dr. Melton."  The attorney for the DOL explained to
the circuit court that, as of January 2012, 18 months after
Yancy had made her initial claim for benefits in July 2010,
Dental Referral could not be charged for any future claims
Yancy might make for unemployment-compensation benefits.
Yancy did not file a claim for which Dental Referral had been
charged during that 18-month period, and now, as the attorney
for DOL told the circuit court, " it's not going to
cost [Dental Referral] one cent."
appeal, the DOL raises five issues, but we find the
dispositive issue to be the DOL's argument that this case
became moot when the deadline passed after which Dental
Referral could no longer be charged for the
unemployment-compensation benefits that were paid to Yancy.
" 'It is well settled that the judiciary of Alabama
is not empowered " 'to decide moot questions,
abstract propositions, or to give advisory opinions, however
convenient it might be to have these questions decided for
the government of future cases.'" ' Ex parte
Connors, 855 So.2d 486, 488 (Ala. 2003) (quoting
Stamps v. Jefferson County Bd. of Educ., 642 So.2d
941, 944 (Ala. 1994), quoting in turn Town of Warrior v.
Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963)).
" 'In deciding whether a case is moot, a court must
consider " whether decision of a once living dispute
continues to be justified by a sufficient prospect that the
decision will have an impact on the parties." 13A C.
Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure § 3533, at 212 (1984). " [I]f a case has
become moot, or [if a] judgment would not accomplish an end
recognized as sufficient in law, there is no necessity for
the judgment, the court will decline to consider the merits,
and [the court will] dismiss the case." Chisolm v.
Crook, 272 Ala. 192, 194, 130 So.2d 191 (1961).'
" Hornsby v. Sessions, 703 So.2d 932, 938 (Ala.
1997) ([first] emphasis added)."
Auburn Med. Ctr., Inc. v. East Alabama Health Care
Auth., 908 So.2d 243, 245 (Ala.Civ. 2003) (second
to the timeline the DOL's attorney outlined for the
circuit court, at the time Dental Referral filed its appeal
in the circuit court, the DOL still could have "
charged" Dental Referral for any
unemployment-compensation benefits that Yancy might have
sought in the next year. Therefore, a justiciable controversy
still existed at the time the appeal was filed in the circuit
did not file a claim for benefits within the remaining time,
and, according to the DOL's own attorney, Dental Referral
cannot be " charged" for any future claims for
unemployment-compensation benefits Yancy might file. As a
result, even if this court were to conclude that the circuit
court had erred in entering the summary judgment, that
conclusion would be for naught. At this point, a
determination by this court as to whether the circuit court
properly determined that Dental Referral was not Yancy's
employer in September 2010 would have no legal consequence. A
consideration of the merits of the issues the DOL raises on
appeal would be futile. In other words, any judgment entered
by this court would not accomplish an end recognized as
sufficient in law. Auburn Med. Ctr., supra. There is simply
no necessity for the DOL's appeal. We decline to consider
the merits of the issues raised by the DOL on appeal, and,
therefore, the appeal is dismissed.
cross-appeal, Dental Referral contends that the circuit court
erred in denying its claim for an attorney fee, which was
made pursuant to § 12-19-272 of the ALAA. As grounds for
its request for an attorney fee, Dental Referral asserted
that the DOL purportedly filed an answer for Yancy, who was
not a party and was not represented by the DOL's
attorneys, and, thus, Dental Referral says, the DOL "
interposed a defense" " without substantial
justification." Dental Referral also asserted that the
DOL used what it described as " abusive discovery
tactics" by " unilaterally cancel[ing]"
without explanation Yancy's deposition, which had been
noticed by Dental Referral. Dental Referral's
representative had apparently cut short a vacation to attend
the deposition when the DOL canceled it. Dental Referral also
asserted that, after the parties had made their evidentiary
submissions in favor
of and in opposition to the parties' respective motions
for a summary judgment and after the hearing on the motions,
the DOL submitted the affidavit of the dentist for whom Yancy
had worked in September 2010 as a " supplement."
The affidavit had been obtained by the DOL on November 19,
2012--almost two months before the January 8, 2013, hearing.
However, it was not mentioned or submitted to the circuit
court until it was filed the night of January 22, 2013.
Dental Referral contended that the DOL's conduct in
submitting the affidavit two weeks after the hearing violated
Rule 56(c), Ala. R. Civ. P. Dental Referral also alleged that
the late submission of the affidavit was an " unfair
tactic," unnecessarily expanded the proceedings, was
interposed for delay and harassment, and caused Dental
Referral to incur additional attorney fees and costs.
Referral cites no legal authority for its contention that it
was entitled to an attorney fee under the ALAA. Alabama's
appellate courts have repeatedly cautioned that
" 'Rule 28(a)(10), Ala. R. App. P., requires that
arguments in an appellant's brief contain "
citations to the cases, statutes, other authorities, and
parts of the record relied on." Further, " it is
well settled that a failure to comply with the requirements
of Rule 28(a)(10) requiring citation of authority in support
of the arguments presented provides this Court with a basis
for disregarding those arguments." State Farm Mut.
Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala. 2005)
(citing Ex parte Showers, 812 So.2d 277, 281 (Ala.
2001)). This is so, because " 'it is not the
function of this Court to do a party's legal research or
to make and address legal arguments for a party based on
undelineated general propositions not supported by sufficient
authority or argument.'" Butler v. Town of
Argo, 871 So.2d 1, 20 (Ala. 2003) (quoting Dykes v.
Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.
Prattville Mem'l Chapel v. Parker, 10 So.3d 546,
560 (Ala. 2008) (quoting Jimmy Day Plumbing & Heating,
Inc. v. Smith, 964 So.2d 1, 9 (Ala. 2007)).
other than referring to § 12-19-272 as the basis for its
claim, Dental Referral has failed to include any citation to
authority in support of its assertion that the circuit court
erred in denying its claim for an attorney fee. In the
absence of such authority, Dental Referral has waived this
claim on appeal.
reasons set forth above, the appeal is dismissed, and, as to
the cross-appeal, the circuit court's judgment is
Effective October 1, 2012, while this case
was being litigated, the Alabama Department of Labor merged
into the Alabama Department of Industrial Relations, which
was renamed the Alabama Department of Labor. § 25-2-1.1,
Ala. Code 1975.
Yancy had obtained full-time employment in