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Alabama Department of Labor v. Dental Referral Serv., LLC

Alabama Court of Civil Appeals

August 22, 2014

Alabama Department of Labor
v.
Dental Referral Service, LLC; Dental Referral Service, LLC
v.
Alabama Department of Labor

          Appeals from Shelby Circuit Court. (CV-11-291).

         Joseph 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.

         Bruce 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.

         All the judges concur.

          OPINION

Page 1062

          PER CURIAM.

         The Alabama Department of Labor (" the DOL" )[1] appeals from a summary judgment of the Shelby Circuit Court (" the

Page 1063

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 1975.

         The 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.

         On 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.

         In 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 court.

         At one 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." [2] 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."

         On 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 ...


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