State v. Epic Tech

373 So.3d 809

STATE of Alabama

v.EPIC TECH, LLC, et al.

1210012

Supreme Court of Alabama.

May 20, 2022

*Note from the reporter of decisions: Judge Moore, retired circuit judge, 24th Judicial Circuit, was appointed to preside over this case upon the recusal of the circuit judge in the 17th Judicial Circuit.

Steve Marshall, att’y gen., and Edmund G. LaCour, Jr., solicitor gen., A. Barrett Bowdre, deputy solicitor gen., and John L. Kachelman III, asst, att’y gen., for appellant.

Joel E. Dillard of Dillard, McKnight, James & McElroy, LLP, Birmingham, for appellee Epic Tech, LLC.

John M. Bolton, Montgomery, for appellee Greenetrack, Inc.

Joel E. Dillard of Dillard, McKnight, James & McElroy, LLP, Birmingham, for appellee Tommy Summerville Police Support League, Inc.

M. Virginia Buck, Northport, for appellee Dream, Inc., d/b/a Frontier Bingo.

William G. Somerville and Jade E. Sipes of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for appellees Next Level Leaders and Tishabee Community Center Tutorial Program.

MITCHELL, Justice.

This appeal is a follow-up to State v. Epic Tech, LLC, 323 So. 3d 572 (Ala. 2020) ("Epic Tech I"), and State v. Epic Tech, LLC, 342 So. 3d 200 (Ala. 2021) ("Epic Tech II"), which stemmed from actions initiated by the State of Alabama to halt allegedly illegal gambling activities in three counties. In this action, the Greene Circuit Court dismissed the State’s operative complaint based on grounds that we rejected in Epic Tech I. Consequently, we reverse and remand. We also grant the State’s request to reassign the case to a different circuit judge.

Facts and Procedural History

We already recounted much of this case’s background in Epic Tech I, 323 So. 3d at 574-75, and Epic Tech II, 342 So. 3d at—. To briefly recap, in 2017, the State initiated three virtually identical actions "seeking to abate as public nuisances allegedly illegal gambling activities" in Greene, Lowndes, and Macon Counties. Epic Tech II, 342 So. 3d at 204. In 2019, the Lowndes and Macon Circuit Courts dismissed two of the State’s complaints for lack of subject-matter jurisdiction. In Epic Tech I, we reversed those dismissals and remanded the cases for further proceedings. See Epic Tech I, 323 So. 3d at 606.

Meanwhile, the Greene County case, from which this appeal arises, "proceeded much slower than the other cases." Epic Tech II, 342 So. 3d at 209 (Bolin, J., concurring specially). At the time of our decision in Epic Tech I, the parties had fully briefed and argued -- but the circuit court had yet to rule on -- motions to dismiss raising the same theories on which the Lowndes and Macon Circuit Courts had granted dismissal. Immediately after we released Epic Tech I, the State urged the circuit court to deny the pending motions to dismiss based on that decision. The State advised the circuit court that Epic Tech I had rejected "the exact same arguments presented by the defendants in [the Greene County] case," that it "directly applie[d] to the legal issues in this case," and that, accordingly, the circuit court "ha[d] no option but to deny the motions to dismiss and allow the State’s case to proceed."

Little more than a week later, the circuit court entered an order dismissing the State’s complaint for lack of subject-matter jurisdiction and for failure to state a claim upon which relief could be granted. The court reasoned that it lacked subject-matter jurisdiction under State v. Greenetrack, Inc., 154 So. 3d 940 (Ala. 2014), and Tyson v. Macon County Greyhound Park, Inc., 43 So. 3d 587 (Ala. 2010), because adjudicating the State’s public-nuisance claim would require determining whether the defendants’ actions were criminal. The court also concluded, based on Wilkinson v. State ex rel. Morgan, 396 So. 2d 86 (Ala. 1981), that the repeal of former § 13-7-90, Ala. Code 1975, deprived it of subject-matter jurisdiction over this action. These grounds were some of the very same theories we had just rejected in Epic Tech I. See 323 So. 3d at 579-84. The circuit court’s order did not mention that decision.

The State appealed to this Court. Noticing that the record indicated that several defendants had withdrawn their motions to dismiss, we remanded the case to the circuit court for it to enter an amended order identifying the defendants to which the dismissal order pertained and for certification of the order as a final judgment under Rule 54(b), Ala. R. Civ. P. The circuit court promptly entered such an amended order and certification but stated its view that its dismissal order was not suitable for Rule 54(b) certification. On further review, we agreed with the circuit court and dismissed the appeal for lack of a final judgment. See Epic Tech II, 342 So. 3d at —. Justice Bolin, in a special concurrence joined by three other Justices, noted the troubling delay that had marked the progress of this action, emphasized that "[t]his case presents a question of utmost importance involving an alleged public nuisance," and "urge[d] the parties, and the circuit court, to proceed with this case as promptly as possible so as to avoid its continuing to languish and cause further delay." Id. at 200 (Bolin, J., concurring specially). Justice Shaw, in another special concurrence, noted that the rationale of the circuit court’s dismissal order logically implied that it should dismiss the State’s complaint as to all defendants, regardless of whether they had pending motions to dismiss. Id. at — (Shaw, J., concurring specially).

On remand, no further proceedings occurred for more than two months. Eventually, the State filed a motion asking the circuit court to reconsider its order of dismissal or, in the alternative, for a status hearing. In that motion, the State pointed to Justice Shaw’s concurrence in Epic Tech II explaining that, if the circuit court believed that it lacked subject-matter jurisdiction, it should promptly dismiss the entire case. Alternatively, the State requested "a status healing to determine how to proceed with this ease." At the same time, the State emphasized that it "firmly believe[d] the law support[ed] its complaint and the claims against all defendants" and that, in the State’s view, the action "should proceed against all named parties so that proper resolution of the claims [could] be made by the circuit court." In response, the circuit court entered an order that quoted Justice Shaw’s Epic Tech II concurrence and dismissed the action "in its entirety against all defendants." Two of the defendants (Next Level Leaders and Tishabee Community Center Tutorial Program, which do business together as River’s Edge) then filed a motion to alter, amend, or vacate the judgment, see Rule 59(e), Ala. R. Civ. P., in which they noted that the circuit court had subject-matter jurisdiction under Epic Tech I. The circuit court denied that motion without explanation, and the State timely appealed from the judgment of dismissal.

Standard of Review

[1, 2] We review the dismissal of a complaint de novo. See Barber v. Jefferson Cnty. Racing Ass’n, Inc., 960 So. 2d 599, 603 (Ala. 2006). We may affirm the circuit court’s judgment for any legal, valid reason, even one not raised in or considered by the circuit court, unless due-process fairness principles require that the ground have been raised below and it was not. See Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003).

Analysis

We divide our analysis into two parts. First, we explain that the dismissal of the State’s complaint must be reversed. Second, we consider the State’s request to reassign the case to a different circuit judge on remand.

A. The Circuit Court’s Erroneous Dismissal

It requires no analysis to show that the grounds on which the circuit court originally dismissed the State's complaint, and to which it evidently adhered in its amended orders on remand, are squarely contrary to our holdings in Epic Tech I. See 323 So. 3d at 579-84. Strangely, the defendants’ brief’s largely ignore this elephant in the room. One defendant, Greenetraek, Inc., tries to relitigate the questions resolved in Epic Tech I without acknowledging that it is effectively asking us to overrule that decision.¹ We will waste no further ink on such arguments.

The other defendants, more prudently, decline to defend the circuit court’s reasoning but raise several alternative grounds in support of affirmance. Without exception, those arguments are unpersuasive.

[3] First, those defendants argue that the State invited the judgment of dismissal when, in moving for reconsideration, it pointed the circuit court to Justice Shaw’s Epic Tech II concurrence. See Thompson v. Magic City Trucking Serv., 275 Ala. 291, 295, 154 So. 2d 306, 310 (1963) (explaining that, under the doctrine of invited error, "a party may not avail himself of error, if any, into which he has led the court"). As stated above, Justice Shaw had explained that, if the circuit court lacked subject-matter jurisdiction -- as it had originally ruled with respect to certain defendants -- it was bound to dismiss the action in its entirety. The record makes clear that the State raised this point only to ensure an appealable final judgment if the court adhered to its original rationale -- not to concede that the court’s rationale was correct or that the court did lack jurisdiction. On the contrary, in the same motion for reconsideration in which it is contended to have invited dismissal, the State clearly reiterated its position that dismissal was erroneous, The State did not invite the circuit court’s erroneous endorsement of the arguments we rejected in Epic Tech I and is not barred from seeking reversal.

[4] Second, some of the defendants, relying on the statutory description of a "public nuisance" as "one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals," § 6-5-121, Ala. Code 1975 (emphasis added),...