Ex Parte Tellabs Operations, 1100393 (Ala. 8-12-2011)

84 So. 3d 53, 2011 WL 3528370, 2011 Ala. LEXIS 127
Supreme Court of Alabama·Decided August 12, 2011·No. 1100393·Published·Cited by 2 cases

Opinion

PER CURIAM.

Tellabs Operations, Inc. (“Tellabs”), petitions this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order transferring the underlying appeal of an administrative agency’s decision in a taxpayer’s refund action to the Jefferson Circuit Court. We grant the petition and issue the writ.

I. Facts and Procedural History

Tellabs is a global provider of communications equipment and services that has conducted business in Alabama by making sales to customers in Alabama, including customers located in Bessemer. It is undisputed that Tellabs is a foreign corporation with no principal place of business in Alabama. In the course of doing business with customers in Bessemer, Tellabs paid sales taxes to the City of Bessemer (“Bessemer”). Tellabs alleges that it overpaid [55] sales taxes to Bessemer for a period between January 2004 and June 2004, totaling $235,790, including accrued interest.

On September 18, 2007, Tellabs petitioned for a refund of the allegedly overpaid sales taxes.1 Tellabs’s petition was denied on July 9, 2008. Following an administrative appeal and hearing, that decision was upheld on September 16, 2010.

On October 18, 2010, Tellabs appealed from the denial of its refund petition to the Montgomery Circuit Court pursuant to the Alabama Taxpayers’ Bill of Rights and Uniform Revenue Procedures Act, § 40-2A-1 et seq., Ala.Code 1975, also known as the Taxpayers’ Bill of Rights (“the TBOR”).2 In its complaint to the Montgomery Circuit Court, Tellabs invoked the jurisdiction of the court based on § 40-2A-9(g)(l)a., Ala.Code 1975.

On November 15, 2010, Bessemer filed a motion to dismiss or, in the alternative, for a change of venue, in which it argued that venue was improper in Montgomery County pursuant to § 6-3-11, Ala.Code 1975, that venue was proper in Jefferson County, and that the case should be transferred to Jefferson County. Without holding a hearing on the motion, the Montgomery Circuit Court, on November 30, 2010, entered an order transferring the appeal to the Birmingham Division of the Jefferson Circuit Court.

On December 8, 2010, Tellabs filed with the Montgomery Circuit Court a motion to reconsider the order transferring the appeal. In a telephone conference with counsel for the parties on December 16, 2010, Circuit Judge William Shashy informed the parties that he believed he had erred in transferring the appeal,3 but that the Montgomery Circuit Court had lost jurisdiction of the case, and therefore Tel-labs’s only remedy was to petition this Court for a writ of mandamus. Accordingly, on December 30, 2010, Tellabs filed the present petition.

II. Standard of Review

We first note that Judge Shashy was correct in stating that, upon his transfer of the case to the Jefferson Circuit Court, the Montgomery Circuit Court lost jurisdiction of it. As this Court explained in Ex parte Chapman Nursing Home, Inc., 903 So.2d 813, 815 (Ala.2004):

[56] “ ‘Once the transferor court has granted the motion to transfer the case and the file has been sent to, and docketed by, the transferee court, the transferor court cannot then change its mind and vacate or set aside its transfer order or order the case returned.’ Ex parte MedPartners, Inc., 820 So.2d 815, 821 (Ala.2001). The transferee court, likewise, cannot ‘retransfer’ the case to the county in which it was originally filed. Ex parte Tidwell Indus., Inc., 480 So.2d 1201 (Ala.1985). ‘The aggrieved party’s sole remedy in such a case is a petition for writ of mandamus directed to the transferor court.’ MedPartners, 820 So.2d at 821.”

As to the standard for this Court’s consideration of the mandamus petition, we have stated:

“ ‘A petition for a writ of mandamus is the proper means for challenging an order transferring an action to another county.’ Ex parte Miller, Hamilton, Snider & Odom, LLC, 978 So.2d 12, 13-14 (Ala.2007) (citing Ex parte Wilson, 854 So.2d 1106, 1109 (Ala.2002)). “‘Mandamus is an extraordinary remedy and will be granted only when there is ‘(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.’ ” ’ Ex parte Flowers, 991 So.2d 218, 220 (Ala.2008) (quoting Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1136 (Ala.2003), quoting in turn Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)).”

Ex parte AIG Baker Orange Beach Wharf, L.L.C., 12 So.3d 1204, 1207 (Ala.2009) (footnote omitted).

III. Analysis

In General Motors Acceptance Corp. v. City of Red Bay, 894 So.2d 650 (Ala.2004), this Court concluded that, although “[t]he requirements of the TBOR were directed initially to the [Alabama] Department [of Revenue],” “the Local Tax Simplification Act of 1998, Act No. 98-192, Ala. Acts 1988 (‘the LTSA’), made the TBOR equally applicable to tax assessments and tax-collection procedures by local taxing authorities.” 894 So.2d at 653. See also Russell Petroleum, Inc. v. City of Wetumpka, 976 So.2d 428, 437 (Ala.2007) (noting that, “[considering the TBOR (including a 1998 amendment thereto now codified at § 40-2A-13) and the LTSA in their entirety,” the Red Bay Court held that “ ‘[the LTSA] made the TBOR equally applicable to tax assessments and tax-collection procedures by local taxing authorities such as [municipalities and counties]’ ” (quoting Red Bay, 894 So.2d at 653)); Pittsburg & Midway Coal Mining Co. v. Tuscaloosa County, 994 So.2d 250, 258 (Ala.2008) (observing that “[t]his Court in Red Bay held that the LTSA made the administrative-appeal procedures in the TBOR ‘equally applicable to tax assessments and tax-collection procedures by local taxing authorities’”). In this case, Bessemer concedes the applicability of the TBOR, and Tellabs purported to appeal the decision denying its request for a refund pursuant to § 40-2A-9(g)(1)a., Ala.Code 1975, part of the TBOR. We address the mandamus petition before us accordingly.4

Section 40-2A-9(g)(l)a. provides:
[57] “(g) Appeals to circuit court.

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Ex Parte Tellabs Operations, 1100393 (Ala. 8-12-2011), 84 So. 3d 53, 2011 WL 3528370, 2011 Ala. LEXIS 127 (Ala. 2011).

84 So. 3d 53 (Ex Parte Tellabs Operations, 1100393 (Ala. 8-12-2011)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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