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EMBU, Inc. v. Tallapoosa County Commission

Alabama Court of Civil Appeals

April 20, 2018

EMBU, Inc.
v.
Tallapoosa County Commission

          Appeal from Montgomery Circuit Court (CV-16-901646)

          THOMAS, JUDGE.

         EMBU, Inc. ("EMBU"), appeals from a judgment of the Montgomery Circuit Court in favor of the Tallapoosa County Commission ("the county commission"). Because the circuit court's judgment is void, we dismiss the appeal.

         Background

         On December 8, 2016, EMBU initiated an action in the circuit court via a pleading that it styled a "petition for writ of certiorari and for declaratory judgment" against the county commission, five county commissioners individually, the Alabama Alcoholic Beverage Control Board ("the ABC Board"), and three members of the ABC Board individually. EMBU specifically sought a "declaratory judgment and injunctive relief" under § 6-6-220 et seq., Ala. Code 1975, "and certiorari relief pursuant to, " among other authority, Black v. Pike County Commission, 360 So.2d 303 (Ala. 1978).

         In relevant part, EMBU alleged in its petition that it was the owner and operator of a convenience store and fuel station located in Tallassee and that the ABC Board had previously granted it a liquor license but had also, the next day, "rescinded and revoked" the liquor license after the county commission denied approval of the liquor license. EMBU alleged that the county commission's denial of approval for its liquor license was unconstitutional as being, among other things, arbitrary and capricious. In light of its allegations, EMBU's petition asked for specific relief, as set out in relevant portions of two counts: (1) A declaratory judgment "vacating and setting aside the denial of [its] liquor license, " ordering the ABC Board to issue a liquor license to EMBU, and enjoining the county commission "and its officers" from interfering with EMBU's right to a liquor license; and (2) the issuance of "a writ of certiorari ... finding that the denial of [EMBU]'s liquor license was arbitrary, capricious[, ] and unreasonable, in violation of applicable and well settled caselaw" and setting aside the county commission's decision. EMBU later filed an amended petition, to which it attached an affidavit of one of its officers in support of its allegations.

         The county commission and the county commissioners answered EMBU's complaint and generally denied its allegations. The ABC Board and the ABC Board members also filed an answer, in which they specifically denied several of EMBU's allegations and, in the same pleading, moved to dismiss EMBU's claims against them based on, among other things, assertions that the ABC Board members were immune from liability and that the ABC Board lacked authority to issue EMBU a liquor license without the county commission's approval, citing as support § 28-3A-23(d), Ala. Code 1975 ("Each retail liquor license application must be approved ... by the county commission if the retailer is located in the county and outside the limits of the municipality before the board shall have authority to grant the license.").

         On February 22, 2017, the circuit court entered an order indicating that it had conducted a hearing regarding a "motion for emergency relief" that had been filed by EMBU. In its order, the circuit court denied EMBU's motion, granted the ABC Board's and the ABC Board members' motion to dismiss, and granted an oral motion that had been asserted at the hearing to dismiss EMBU's claims against the county commissioners. Thus, after the entry of the circuit court's February 22, 2017, order, the only defendant remaining in EMBU's action was the county commission.

         The circuit court conducted an evidentiary hearing regarding EMBU's petition on May 2, 2017.[1] On July 31, 2017, the circuit court entered a judgment that provided, in its entirety: "Based on the evidence presented, this Court finds in favor of the Defendants and against the Plaintiff as to all issues in this case." EMBU filed a timely notice of appeal on September 12, 2017.[2] This court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975. See Minesaha, Inc. v. Town of Webb, 236 So.3d 890, 894 (Ala. Civ. App. 2017).

         Analysis

         As noted above, the circuit court dismissed all the defendants named in EMBU's petition, except the county commission, and EMBU does not challenge the circuit court's dismissal of those defendants on appeal. We will not, therefore, consider the circuit court's dismissal of those parties. Ex parte Riley, 464 So.2d 92, 94 (Ala. 1985). Effectively, the relief sought by EMBU in the circuit court was distilled to a review of the county commission's denial of approval for its liquor license. On appeal, EMBU essentially argues that the circuit court's judgment should be reversed because, it says, the county commission's decision was arbitrary and capricious. The county commission disagrees.

         In order to evaluate EMBU's argument, we must first determine the nature of the circuit court's review of the county commission's decision. As noted above, EMBU styled its pleading in the circuit court as a "petition for writ of certiorari and for declaratory judgment." It also specifically asked the circuit court to issue a writ of certiorari and set aside the county commission's decision.[3]"'Where there is no statutory right of direct appeal from a local government's decision to deny an application for a liquor license, the only proper method of judicial review is by the common-law writ of certiorari.'" Minesaha, 236 So.3d at 894 (quoting Phase II, LLC v. City of Huntsville, 952 So.2d 1115, 1119 n.3 (Ala. 2006)). EMBU has not provided, and we have not discovered, a statutory right of direct appeal from the county commission's denial of approval for a liquor license. We therefore conclude that the circuit court's review of the county commission's decision was by way of a petition for the common-law writ of certiorari.[4]

         "Although neither party has raised an issue regarding this court's jurisdiction, 'jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.'" Baker v. Baker, 25 So.3d 470, 472 (Ala. Civ. App. 2009)(quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987)). See also Rule 2(a)(1), Ala. R. App. P. Moreover, "'[a] judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.' Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008)." MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 394 (Ala. 2011). We therefore consider whether the circuit court could properly exercise subject-matter jurisdiction over the county commission's decision via a petition for the common-law writ of certiorari.

         "Certiorari at common law was an original writ issued out of a superior, to an inferior court, to bring up the record and determine, from an inspection thereof, whether the judgment of the inferior court was erroneous or without authority." Ex parte Hennies, 33 Ala.App. 377, 379, 34 So.2d 22, 23 (1948). We have also explained that "[t]he common-law writ of certiorari is a remedial writ invoking the '"supervisory power of a superior over an inferior legal tribunal."' ... [T]he court entertaining a petition for a common-law writ of certiorari must be a court of superior jurisdiction to the inferior tribunal at issue." G.W. v. Dale Cty. Dep't of Human Res., 93 ...


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