CMB Holdings Group d/b/a Twelve25 Sports Bar and Entertainment Venue v. City of Tuscaloosa; Walter Maddox, individually and in his capacity as Mayor of the City of Tuscaloosa; Lee Busby, Norman Crow, John Faile, Raevan Howard, Cassius Lanier, Kip Tyner, and Matthew Wilson, individually and in their capacities as members of the Tuscaloosa City Council; and Patrick Stines, in his capacity as Fire Marshall for the City of Tuscaloosa (Appeal from Tuscaloosa Circuit Court: CV-23-900328).

• Court: Supreme Court of Alabama
• Decided: September 27, 2024
• Docket: SC-2024-0084
• Status: Published

Opinion

Rel: September 27, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA SPECIAL TERM, 2024

_________________________

SC-2024-0084 _________________________

CMB Holdings Group d/b/a Twelve25 Sports Bar and Entertainment Venue

v.

City of Tuscaloosa; Walter Maddox, individually and in his capacity as Mayor of the City of Tuscaloosa; Lee Busby, Norman Crow, John Faile, Raevan Howard, Cassius Lanier, Kip Tyner, and Matthew Wilson, individually and in their capacities as members of the Tuscaloosa City Council; and Patrick Stines, in his capacity as Fire Marshal for the City of Tuscaloosa

Appeal from Tuscaloosa Circuit Court (CV-23-900328) SC-2024-0084

MITCHELL, Justice.

The Tuscaloosa City Council recently passed a municipal ordinance

that limits the maximum occupancy of certain restaurants. The owner

of a sports bar affected by the ordinance responded by suing the City of

Tuscaloosa, its mayor, its city council members, and its fire marshal on a

variety of claims. The Tuscaloosa Circuit Court rejected all but one of

those claims and certified its judgment as final for purposes of Rule 54(b),

Ala. R. Civ. P. Because we conclude that the Rule 54(b) certification was

improper, we dismiss the appeal.

Facts and Procedural History

On March 7, 2023, the City of Tuscaloosa passed City Ordinance

No. 9353 ("the Ordinance"), which provides, in relevant part:

"Occupant limits for restaurant liquor licenses and on- premise beer and wine shall be established with applicable furnishings arranged for dining as shown on the alcohol license application. There shall be no dual occupant limit for restaurants and gastropubs to increase the occupant limit when furnishings are removed or reconfigured. Any increase in the occupant limit due to reconfiguring furnishings must be approved by the city council."

In other words, the Ordinance requires an establishment whose alcohol

license is issued as a restaurant to be assigned an occupancy limit

corresponding to its configuration as a restaurant ("with applicable

2 SC-2024-0084

furnishings arranged for dining") rather than as a bar or some other

entertainment venue ("when furnishings are removed or reconfigured").

The Ordinance accomplished this by amending Chapter 3 ("Alcoholic

Beverages") and Chapter 11 ("Fire Prevention and Protection") of the

Tuscaloosa Code of Ordinances.

Before the Ordinance's enactment, facilities known as "gastropubs"

-- defined as venues that operate as restaurants by day and bars by night

-- were able to take advantage of dual occupancy limits: a smaller limit

when configured as a restaurant with full furnishings, and a larger limit

when reconfigured with furnishings removed. By eliminating dual

occupancy limits, the Ordinance effectively reduced the maximum

occupancy of gastropubs by preventing them from taking advantage of a

higher occupancy limit during evening hours.

Twelve25 Sports Bar and Entertainment Venue is a gastropub

owned and operated by CMB Holdings Group and located in a part of

Tuscaloosa known as "the Strip," an area near the University of

Alabama's campus that is home to numerous bars and restaurants and

that serves as a popular destination for college students. Although CMB

now indicates that the most important aspect of Twelve25 is the sports-

3 SC-2024-0084

bar side, it classified Twelve25 as a "restaurant" to obtain a restaurant

liquor license; accordingly, it falls within the class of business covered by

the Ordinance.

Before the Ordinance's passage, Twelve25 enjoyed a dual occupancy

limit: it had a maximum occupancy of 287 persons when configured as a

restaurant and a much higher occupancy limit of 519 when configured as

a bar. By capping Twelve25's maximum occupancy at 287 persons, the

Ordinance hurt the sports-bar portion of Twelve25's business, ultimately

decreasing its overall revenue.

Not long after the Ordinance was enacted, CMB brought this

lawsuit against the City of Tuscaloosa; Tuscaloosa Mayor Walter

Maddox, in both his personal and official capacity; Tuscaloosa City

Council members Lee Busby, Norman Crow, John Faile, Raevan Howard,

Cassius Lanier, Kip Tyner, and Matthew Wilson ("the councilors"), in

both their personal and official capacities; and Tuscaloosa Fire Marshal

Patrick Stines, in his official capacity only.

In broad outline, CMB's complaint alleges that it was the victim of

a racially discriminatory conspiracy designed to "target[] [its] minority-

owned business." CMB contends that the defendants "wrongfully and

4 SC-2024-0084

illegally" blamed Twelve25 for a shooting that took place on the Strip in

January 2023 that allegedly involved some of Twelve25's patrons. In

CMB's view, the defendants used that shooting as a pretext for enacting

the Ordinance, which -- according to CMB -- was really designed to

punish CMB for having black ownership, for attracting black clientele,

and for "attract[ing] significant numbers of customers away from

already-established businesses on the Strip which have white owners."

The defendants -- many of whom are themselves black -- deny these

allegations.

CMB's complaint goes on to demand money damages and equitable

relief under 17 pleaded counts, the captions of which we list verbatim

from the complaint:

1. Alabama Constitution, Art. I, Sec. 22, Impairment of Obligations of Contracts

2. Violation of Ala. Code § 11-52-77

3. Violation of Vested Rights

4. Preemption

5. Alabama Constitution, Art. I, Secs. 6 and 13, Violation of Procedural Due Process

6. Alabama Constitution, Art. I, Secs. 1, 6, and 13, Violation of Substantive Due Process

5 SC-2024-0084

7. Alabama Constitution, Art. I, Secs. 1, 6, 13, 22, and 35, Violation of Equal Protection

8. Alabama Constitution, Art. I, Sec. 23, Inverse Condemnation

9. Alabama Constitution, Art. I, Sec. 6, Unreasonable Seizure

10. Conversion

11. Fraud and/or Negligent Misrepresentation, Reckless and Intentional Misrepresentation and Suppression

12. Equitable Estoppel

13. Violation of Ala. Code § 11-45-8(c)

14. Tortious Interference with Contractual Relations

15. Unjust Enrichment

16. Declaratory Judgment

17. Preliminary and Permanent Injunctive Relief

The defendants moved to dismiss all of those counts except for count

13, as to which the defendants sought summary judgment. In response

to that motion, CMB conceded that it could not seek money damages

against the City and that counts 8, 9, and 10 of its complaint were not

viable. But CMB argued that its other claims should proceed.

The trial court held a hearing on the defendants' motion and later

issued an order granting that motion in large part. Specifically, the trial

court: (a) dismissed all claims for money damages against the City based

6 SC-2024-0084

on CMB's concession; (b) dismissed counts 8, 9, and 10, again based on

CMB's concession; (c) dismissed all personal-capacity claims for money

damages against the mayor and the councilors based on its determination

that they have legislative immunity from suit; and (d) dismissed all

official-capacity claims against the mayor, the councilors, and Stines

("the individual defendants") based on the determination that those

claims were fairly encompassed within CMB's concession that it could

not state any viable claims against the City. Those rulings left intact

only CMB's claims for equitable relief against the City in counts 1-7 and

11-17, which the trial court went on to address on a count-by-count basis.

In its analysis, the trial court determined that all of CMB's claims failed,

except for counts 1, 16, 17 -- which, according to the trial court, "together

state a valid claim against the City only, under the Alabama

Constitution's Contracts Clause, solely for declaratory and injunctive

relief."

CMB responded to that ruling by asking the trial court to alter,

amend, or vacate its judgment or, in the alternative, to certify the

judgment as final under Rule 54(b) (which would enable CMB to

immediately appeal the adverse rulings). The trial court denied CMB's

7 SC-2024-0084

request to alter, amend, or vacate the judgment, but it granted its request

for a Rule 54(b) certification after "determin[ing] that there is no just

reason for delay." CMB then timely appealed the trial court's judgment

dismissing the adjudicated claims.

Appellate Jurisdiction

Before we can consider the merits of CMB's arguments on appeal,

we must resolve a threshold question: whether the trial court properly

certified its judgment as final under Rule 54(b). This Court has an

obligation to "scrutinize the propriety of Rule 54(b) certifications even in

cases where no party addresses this 'fundamental issue.' " Alabama Ins.

Underwriting Ass'n v. Skinner, 352 So. 3d 688, 690 (Ala. 2021) (citation

omitted). Here, CMB defends the trial court's certification, while the

defendants argue that it was improper.

Rule 54(b) provides in relevant part:

"When more than one claim for relief is presented in an action, ... the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."

A proper certification under Rule 54(b) designates an otherwise nonfinal

judgment as "final" for purposes of appellate jurisdiction. Sparks v. City

8 SC-2024-0084

of Florence, 936 So. 2d 508, 512 (Ala. 2006). An improper Rule 54(b)

certification, however, does not create a valid final judgment and

therefore cannot confer jurisdiction over the appeal. Dzwonkowski v.

Sonitrol of Mobile, Inc., 892 So. 2d 354, 362 (Ala. 2004).

"This Court looks with some disfavor upon certifications under Rule

54(b)," because piecemeal appeals typically entail considerable delay,

expense, and uncertainty. Schlarb v. Lee, 955 So. 2d 418, 419 (Ala. 2006).

Such certifications, we have explained, " ' " 'should be entered only in

exceptional cases' " ' " and not as a matter of course. Id. (citations

omitted). In keeping with that principle, we have held that a trial court

exceeds its discretion in determining that there is "no just reason for

delay" whenever the adjudicated and unadjudicated claims are " ' " 'so

closely intertwined that separate adjudication would pose an

unreasonable risk of inconsistent results.' " ' " Lighting Fair, Inc. v.

Rosenberg, 63 So. 3d 1256, 1263 (Ala. 2010) (citations omitted).

Applying those principles here, we conclude that the trial court's

Rule 54(b) certification was improper because CMB's unadjudicated

claims are closely intertwined with several of the adjudicated claims at

9 SC-2024-0084

issue in this appeal. That is especially true when it comes to CMB's

constitutional claims, which make up the bulk of its complaint.

Recall that CMB's unadjudicated claims (counts 1, 16, and 17) seek

declaratory and injunctive relief based on CMB's allegation that

enforcement of the Ordinance would violate Article I, § 22, of the

Alabama Constitution. That provision of our Constitution guarantees

"[t]hat no ex post facto law, nor any law, impairing the obligations of contracts, or making any irrevocable or exclusive grants of special privileges or immunities, shall be passed by the legislature; and every grant or franchise, privilege, or immunity, shall forever remain subject to revocation, alteration, or amendment."

Art. I, § 22, Ala. Const. 2022 (emphasis added).

In analyzing the merits of CMB's unadjudicated § 22 claims, the

trial court will be asked to resolve several disputes that are also at issue

in CMB's appeal of its adjudicated claims. The first of those disputes

involves whether the Ordinance impaired CMB's "vested rights," as

opposed to merely affecting a "franchise" or "privilege." The defendants

argue that the maximum-occupancy limit affected by the Ordinance is,

"on its face," a mere "license or 'privilege' " and that, as a result, the

Ordinance's modification of that occupancy limit cannot support either

CMB's § 22 claims or its adjudicated vested-rights claim (count 3).

10 SC-2024-0084

Defendants' brief at 16. 1 CMB disagrees, contending that the Ordinance

affected its vested rights. While we express no view on the merits of that

dispute, the parties' arguments on this point reveal that both the

adjudicated vested-rights claim and the unadjudicated § 22 claims turn

on a common question: whether the Ordinance affected a vested right or

a mere privilege. That commonality creates an obvious risk of

inconsistent results if the two sets of claims were to be litigated

separately.

The second dispute common to both the adjudicated and

unadjudicated claims involves whether the Ordinance represented a

proper exercise of the City's police powers. As this Court has long held,

the government's "general police powers are not inhibited" by § 22's

prohibition on laws impairing the obligations of contracts. Sumter Cnty.

1The precise contours of CMB's "vested rights" claim are somewhat

unclear. Count 3 of CMB's complaint seems to assume that there exists a freestanding claim for relief based on violations of "vested rights" and that such a claim can be brought independently of §§ 1, 6, 13, and 22 of the Alabama Constitution. Because we are dismissing this appeal for want of appellate jurisdiction, we express no view on the merits of that assumption. But, whatever the contours CMB's vested-rights claim, it is clear from CMB's briefing on appeal that CMB has premised that claim on the argument that the Ordinance affected CMB's vested rights, as opposed to affecting a mere franchise or privilege that CMB enjoys. 11 SC-2024-0084

Bd. of Educ. v. University of W. Alabama, 349 So. 3d 1264, 1275 n.5 (Ala.

2021) (collecting cases). In general, so long as the government exercises

its police powers to serve a genuine "public end," the resulting law does

not violate § 22, even if it has the incidental effect of impairing private

contracts. Id. The question whether the Ordinance serves a genuine

public end is hotly disputed in both the still-pending § 22 claims and the

adjudicated procedural and substantive due-process claims (counts 5 and

6) -- all of which center on CMB's allegation that the Ordinance was

enacted solely to discriminate against black business owners and

clientele, rather than to support any legitimate public interest. Again,

this commonality could give rise to inconsistent results and illustrates

why these claims are ill-suited to piecemeal adjudication.

A third area of overlap involves CMB's equal-protection claim

(count 7). In its briefing on appeal, CMB acknowledges that the Alabama

Constitution does not contain an equal-protection clause akin to the

Equal Protection Clause contained in the Fourteenth Amendment to the

United States Constitution. But CMB nonetheless argues that there is

an equal-protection "component" to (among other provisions) § 22 of the

Alabama Constitution and that this equal-protection component of § 22

12 SC-2024-0084

is separately enforceable. CMB's brief at 39 & n.3; see also CMB's reply

brief at 23-26; cf. Dixon v. City of Auburn, [Ms. SC-2022-0741, Oct. 27,

2023] ___ So. 3d ___, ___ (Ala. 2023) (noting that "courts and

commentators have debated whether Alabama's Constitution

independently provides for an equal-protection claim and what the

contours of such a claim would be"). CMB does not explain how, in its

view, the equal-protection component of § 22 gives rise to a standalone

cause of action. But, whatever the mechanism, CMB's briefing makes

clear that its equal-protection claim derives at least in part from its

theories about the nature and scope of § 22. Separate adjudication of

those two sets of claims could therefore require this Court to " ' " 'consider

the same issue' " ' " -- namely, the scope, history, and meaning of Section

22 -- " ' " 'a second time,' " ' " which is precisely the scenario Rule 54(b) was

designed to prevent. Fuller v. Birmingham-Jefferson Cnty. Transit

Auth., 147 So. 3d 907, 912 (Ala. 2013) (citations omitted).

The extensive overlap between CMB's adjudicated and

unadjudicated claims makes clear that this case is not one of the

"exceptional cases" for which piecemeal appellate review is appropriate.

13 SC-2024-0084

The judgment the trial court certified was therefore not an appealable

final judgment, and, accordingly, we dismiss the appeal.

Conclusion

CMB's appeal is dismissed as having been taken from a nonfinal

judgment.

APPEAL DISMISSED.

Parker, C.J., and Shaw, Wise, Mendheim, Stewart, and Cook, JJ.,

concur.

Bryan and Sellers, JJ., concur in the result.