White v. Allen

567 So. 2d 295, 1989 Ala. Civ. App. LEXIS 176, 1989 WL 55228
CourtCourt of Civil Appeals of Alabama
DecidedMay 24, 1989
DocketCiv. 6802
StatusPublished
Cited by2 cases

This text of 567 So. 2d 295 (White v. Allen) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. Allen, 567 So. 2d 295, 1989 Ala. Civ. App. LEXIS 176, 1989 WL 55228 (Ala. Ct. App. 1989).

Opinions

INGRAM, Presiding Judge.

This case places before our court for the third time in less than a year a problem of statutory construction involving § 25-4-95, Ala.Code 1975 (1986 Repl.Vol.). Section 25-4-95 addresses the requirements necessary to perfect an appeal from a decision by the Department of Industrial Relations (DIR). There is no question that the notice of appeal must be filed with the circuit court within ten days after a decision of the board of appeals of DIR has become final. The disputed portion of the statute is whether a copy of the notice of appeal must also be served upon the director of DIR within the same ten-day period before the circuit court will have jurisdiction over such appeals. We have previously addressed that issue in Allen v. Hooks, 564 So.2d 440 (Ala.Civ.App.1988), and Doty v. State Department of Industrial Relations, 564 So.2d 438 (Ala.Civ.App.1988).

The instant case arose when DIR determined that Harvey L. White was not eligible for unemployment compensation benefits, a decision which became final on February 22, 1988. White filed a notice of appeal in the Circuit Court of Elmore County on March 2. DIR was named as a defendant. White also filed a request for [296]*296service upon DIR by certified mail, return receipt requested, and provided a postage-paid envelope to the circuit clerk. The notice was mailed to DIR on March 14 and was received on March 15. The trial court dismissed White’s appeal on the ground that it was not timely filed. On appeal, White contends that service of the notice of appeal upon the director within ten days is not jurisdictional and, therefore, that the trial court erred in dismissing his case.

A review of the line of cases leading to our recent decisions in Hooks and Doty reveals that we interpreted § 25-4-95 in a somewhat piecemeal fashion in the past in response to the particular questions presented to us. Conflicting conclusions resulted. We attempted in Hooks to address the problem by clarifying our interpretation of this troublesome statute, but it is now clear that the only way to resolve the conflict in our earlier cases is to overrule one of those decisions.

Section 25-4-95 mandates that certain requirements must be met in order to appeal a final decision by DIR. This court decided years ago that those requirements are jurisdictional and that failure to comply with them will necessitate dismissal of an appeal. Director of State Department of Industrial Relations v. Nolin, 374 So.2d 903 (Ala.Civ.App.1979); Quick v. Utotem of Alabama, Inc., 365 So.2d 1245 (Ala.Civ.App.1979). Problems in interpretation of the statute have arisen, however, because it also includes procedural instructions. We have often been called upon to decide which of the statute’s directives are jurisdictional and which are procedural. We have held that, before jurisdiction attaches, § 25-4-95 mandates that the notice of appeal be filed in the circuit court within ten days after DIR’s decision becomes final, Quick, supra, and that the notice be filed in the county in which the claimant resides, Nolin, supra. The section also requires service of a copy of the notice upon the director of DIR. We stated in Hooks and Doty our conclusion that the legislature intended to require both filing with the court and service on the director within ten days before courts obtain jurisdiction over appeals from DIR. After further review in this case, we believe that conclusion is correct.

The cases relied on in Hooks begin with Crawley v. Carter, 378 So.2d 1139 (Ala.Civ.App.1979), although that case did not present the precise issue addressed here. The claimant in Crawley timely served the director, but failed to leave enough copies for service on all interested parties. We stated as follows:

“[A]s in Rule 3, [Alabama Rules of Appellate Procedure], the timely filing of the notice of appeal with the director invokes the jurisdiction of the circuit court under § 25-4-95. Failure to comply with other statutory procedural requirements does not affect the jurisdiction of the court to hear the appeal, but may be ground for sanctions including dismissal of the appeal.”

378 So.2d at 1141.

Three years later, we decided the case of Taylor v. Department of Industrial Relations, 409 So.2d 447 (Ala.Civ.App.1982). There, the tenth day after DIR’s decision became final was June 1, which was a legal holiday. The claimant filed her appeal on the next business day, June 2, and left with the circuit clerk a postage-paid envelope and copies of the notice for service on the department by certified mail. The notice was not postmarked until June 3.

We held that the claimant’s notice of appeal was timely filed on the day after the holiday pursuant to the application of § 1-1-4 and Rule 6(a), Alabama Rules of Civil Procedure. We then stated the following:

“Section 25-4-95 also requires that there be service upon the director of the Department, and expressly recognizes that such service may be by registered or certified mail.
“In brief, the Department argues that section 25-4-95 demands that the director be served with a notice of appeal within ten days after the decision of the board of appeals becomes final. In this instance, we find this narrow interpretation of section 25-4-95 to be contra to the benevolent purpose of the Unemploy[297]*297ment Compensation Act and the accompanying mandate for liberal construction and application of its provisions'. Crawley v. Carter, 378 So.2d 1139, 1141 (Ala.Civ.App.1979).
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“Generally, we find no requirement in section 25-4-95 that the director be served within the ten day period. It appears to this court that the timely filing in circuit court, providing a means of service of process upon the director by certified mail, and the actual mailing of the notice of appeal to the director and his apparent receipt thereof operated in this case to invoke the jurisdiction of the circuit court under section 25-4-95.
“The trial court should not have, in this instance under these circumstances, dismissed the claimant’s action for failure to serve notice of appeal upon the director within ten days after the decision became final.
“We should not be understood by our decision today to be requiring or not to be requiring the circuit court clerk to mail a notice of appeal to the director. In this instance, though, the circuit court clerk did send the notice to the director by certified mail, and under the circumstances as indicated above, the claimant satisfied the procedural requirements of section 25-4-95.”

409 So.2d at 450.

The Taylor decision was clearly based on that particular factual situation. One cannot help but sympathize with a claimant whose notice to the director is mailed only one day late. We find, however, that the aforesaid language is inconsistent with the holding in Crawley and with cases which follow.

After another three years, we addressed this issue again in Craig v. Department of Industrial Relations, 470 So.2d 1278 (Ala.Civ.App.1985). The claimant had filed a timely notice of appeal, but had not served the requisite copy upon the director, nor had she even named DIR as a party to the suit.

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Cite This Page — Counsel Stack

Bluebook (online)
567 So. 2d 295, 1989 Ala. Civ. App. LEXIS 176, 1989 WL 55228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-allen-alacivapp-1989.