Alabama Department of Public Safety v. Brian Alston

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REL: 12/11/09 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) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2009-2010 _________________________ 2080682 _________________________ Alabama Department of Public Safety v. Brian Alston Appeal from Mobile Circuit Court (CV-08-1413.51) THOMAS, Judge. The Department of Public Safety ("the Department") appeals from a judgment of the trial court reversing the Department's disqualification administrative of Brian ruling Alston's upholding commercial the driver's 2080682 license ("CDL"). In support of its appeal, the Department asserts the following facts, which, as will be explained infra, were not established in the trial court: In August 2007, Alston received a traffic citation for operating an overweight commercial vehicle. After receiving the citation, Alston failed to pay the citation or to appear in court. On November 16, 2007, the Department disqualified Alston's CDL until he paid the outstanding citation and a required license-reinstatement fee. Alston did not pay the citation or the license-reinstatement fee but continued to operate his commercial motor vehicle in connection with his employment. In April 2008, Alston received a second citation for operating an overweight vehicle. After issuing the second citation, the Department extended the disqualification of Alston's CDL for an additional year. Alston sought administrative review of the decision to disqualifying his CDL. After exhausting his administrative appealed to the trial court.1 1 remedies, Alston In his notice of appeal, Alston Section 32-5A-195(q), Ala. Code 1975, provides, in part: "Any person denied a license or whose license has 2 2080682 named as the appellee only the State of Alabama. 2009, the trial court reversed the On March 18, Department's ruling because, the court held, the Department had failed to present any evidence citation. indicating On March that 19, Alston 2009, the had received Department either filed a postjudgment motion arguing that the doctrine of sovereign immunity prevented the State from being made a party to Alston's action. See Ala. Const. of 1901, art. I, § 14.2 The trial court denied the postjudgment motion and permitted Alston to amend his notice of appeal to name the Department as the appellee. The Department then filed a timely notice of appeal to this court on April 28, 2009. First, the Department argues that the trial court did not have subject-matter jurisdiction over this matter based on the been cancelled, suspended or revoked by the Director of Public Safety except where such cancellation or revocation is mandatory under the provisions of this article shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the circuit court in the county wherein such person resides...." 2 Alabama Const. of 1901, art. I, § 14 provides "[t]hat the State of Alabama shall never be made a defendant in any court of law or equity." 3 2080682 longstanding principles of sovereign immunity. See Ex parte Alabama Dep't of Mental Health & Mental Retardation, 937 So. 2d 1018, 1022 (Ala. 2006)("Sovereign immunity is a jurisdictional bar that deprives a court of subject-matter jurisdiction."). The Department bases its sovereign-immunity argument on its contention that the appeal to the trial court was a lawsuit rather than an administrative appeal. In the present case, Alston filed an administrative appeal to the trial court seeking review of the Department's decision. "Sections 32-5A-195(q) and 32-6-7.1(c) provide for an appeal to the circuit court for trial de novo from a [Department] decision denying, revoking or suspending a license." State Dep't of Pub. Safety v. Sexton, 748 So. 2d 200, 214 (Ala. Civ. App. 1998). In the present case, Alston's appeal is not a lawsuit but, rather, is an administrative appeal. Therefore, the trial court had jurisdiction pursuant to § 32-5A-195(q) to review the Department's administrative ruling, and the doctrine of sovereign immunity does not bar Alston's appeal. Second, the exceeded its administrative Department discretion ruling alleges that the when the despite the 4 court trial court reversed provisions of its the 2080682 Department's Rule 760-x-1-.12, Ala. Admin. Code, § 32-649.7(b), Ala. Code 1975, and 49 C.F.R. § 383.51, which the Department says require the mandatory disqualification of Alston's CDL based on his having received the November 2007 and April 2008 citations. However, the Department failed to provide any evidence of either citation to the trial court, leaving that court with no disqualification of Alston's CDL. basis for upholding the "The proceeding authorized by § 32-5A-195(q) is a de novo hearing, i.e. the trial court is empowered to have a hearing, to take testimony, to receive evidence, and to make a finding of its own." Chambers v. Director of the Dep't of Pub. Safety of Alabama, 414 So. 2d 131, 132 (Ala. Civ. argument that the App. 1982). The Department's disqualification was mere mandatory is insufficient to meet its burden of presenting evidence to the trial court. As this court has held, "it [is] error for the trial to court simply affirm the director's order in suspension cases without proof being put forth to show why the license should be suspended." Director, Dep't of Pub. Safety v. Irvine, 603 So. 2d 1074, 1075 (Ala. Civ. App. 1992). 5 2080682 At trial, the Department called Dorothy James, the Department's deputy custodian of records, to testify regarding the records relating to the disqualification of Alston's CDL. However, the trial court upheld Alston's objections to James's testimony based on the grounds that the records were not certified and that any testimony from James would be hearsay. The Department failed to challenge those evidentiary rulings on appeal; therefore, any claims of error relating to those rulings have been waived. Ex parte Professional Bus. Owners Ass'n Workers' Comp. Fund, 867 So. 2d 1099, 1101 (Ala. 2003). In the present case, the failure of the Department to prove the existence of the citations amounted to a lack of evidence supporting the disqualification of Alston's CDL; therefore, the trial court properly reversed the Department's administrative ruling. Because the trial court had jurisdiction pursuant to § 32-5A-195(q) and because the Department failed to present any evidence supporting the disqualification of Alston's CDL, we affirm the trial court's judgment. AFFIRMED. Thompson, P.J., and Pittman and Moore, JJ., concur. Bryan, J., concurs specially, with writing. 6 2080682 BRYAN, Judge, concurring specially. I concur in the main opinion. In this case, the Department of Public Safety ("the Department") asserts facts on appeal that, had they been established in the trial court, would seem to support a judgment in favor of the Department. However, because the Department failed to present any evidence to the trial court supporting the disqualification of Brian Alston's commercial driver's license, the trial judgment in favor of Alston is due to be affirmed. court's Assuming that the Department's unsupported factual assertions are in fact correct, I find it disheartening that a commercial driver whose license should have been disqualified remains on the road simply because the Department failed to present evidence establishing its case. 7

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