holding that, because Michael Stowe failed to raise his argument "that he was not aware of the proposed order submitted to the trial court by the Board [of Pardons and Paroles]" in the circuit court, that argument was waived
How later courts described this case
- holding that, because Michael Stowe failed to raise his argument "that he was not aware of the proposed order submitted to the trial court by the Board [of Pardons and Paroles]" in the circuit court, that argument was waived
- construing the federal Administrative Procedure Act
Written by the judges who cited it.
The opinion
Rel: July 12, 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 published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2024
_________________________
CL-2023-0795
_________________________
Alabama Board of Heating, Air Conditioning, and Refrigeration
Contractors
v.
Elijah Blanchard
Appeal from Jefferson Circuit Court
(CV-20-901357)
HANSON, Judge.
The Alabama Board of Heating, Air Conditioning, and
Refrigeration Contractors ("the Board") appeals from a judgment entered
by the Jefferson Circuit Court ("the circuit court"). In that judgment, the
circuit court overturned decisions of the Board revoking Elijah
CL-2023-0795
Blanchard's certification to operate as a heating and air-conditioning
contractor.
I. Facts and Procedural History
Blanchard was issued a license by the Board to operate as a heating
and air-conditioning contractor. In 2017, Blanchard was disciplined by
the Board for improper work on a customer's heating and air-conditioning
system and was subjected to sanctions including a fine and mandatory
attendance of a remedial class. Subsequently, Blanchard had two cases
before the Board, resulting in the cases before the circuit court: case
number CV-20-901357 and case number CV-22-903693.
A. Case Number CV-20-901357
On March 21, 2019, Stephen Gatti filed a consumer complaint with
the Board, alleging that A & E Service Company, which was operated by
Blanchard, had improperly installed a heating, ventilation, and air-
conditioning ("HVAC") system. Specifically, Gatti alleged:
"A & E Service Company was sent by a[n] American
home warranty company to make repairs. The owner, Elijah
[Blanchard], stated that I needed to replace my unit. He
helped me get in the Alabama Power Company financing
program. He improperly installed the unit, and it caused a
new energy efficient unit to perform worse than a 30-year-old
unit. Alabama Power sent two experts to conduct an
installation inspection and it failed inspection by both
2
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experts. I've given the company multiple attempts to correct
things, but they have not. The company conducted work
during non-business hours, 7 p.m.- 9:30 p.m., and in many
cases failed to show up for appointments. Alabama Power has
the contract, payment information, and reports of increased
power usage. They may also be able to provide the findings of
their expert inspections."
On April 12, 2019, Matthew Feld filed a consumer complaint with
the Board, alleging the following:
"I referred and hired Elijah [Blanchard] to my
homebuilder who we have worked with on other projects.
[Blanchard] was hired to do a complete system for a full
remodel. After the last bit of work he did and the lack of
professionalism by his staff, I decided to call my previous
HVAC [company] if I had issues. The [air conditioning] quit
working last week and I placed a service call with Brown
Heating and Cooling. Their [technician] arrived and was here
for several hours documenting and identifying multiple issues
on our 'fully new system.' After inspection, the owner of Brown
Heating and Cooling called me and advised based on the
amount of issues and the fact this system was just installed
my best course of action was to file a complaint as there are
several thousand dollar[s'] worth of 'redo' work that needs to
be done to bring this system up to code and as it should be for
the almost [$10,000] we paid for it. A few of the issues -- duct
work not up to code, unit not fully sealed with duct work,
coolant leaks already due to the wrong size piping, electrical
wiring not up to code."
3
CL-2023-0795
On September 10, 2019, the Board issued a summons and
administrative complaint1 outlining deficiencies in Blanchard's or his
employees' work on the two consumers' HVAC systems. The
administrative complaint alleged that Blanchard had violated § 34-31-18
et seq., Ala. Code 1975, and Chapter 440-X-5 of the Alabama
Administrative Code (Heating, Air Conditioning, and Refrigeration
Contractors Board) ("HACR"). The administrative complaint set forth
with specificity the "life safety" violations and "minimum standard"
violations that Blanchard was alleged to have violated.2
1An administrative complaint is defined under the Alabama
Administrative Code (Heating, Air Conditioning, and Refrigeration
Contractors Board), r. 440-X-6-.01(3) as "[a] legal document which
contains notice of the time and place of an administrative hearing;
contains a statement of the charges against the certified contractor; and
complies with the notice provisions for contested cases as set forth in the
Alabama Administrative Procedure[] Act[, §41-22-1 et seq., Ala. Code
1975]."
2"Minimum standard" is defined under r. 440-X-5-.01(1), Ala.
Admin. Code (HACR), as "[t]he basic or minimum requirements
allowable by the Board as it pertains to the installation, service, and
repair of residential and commercial heating and air conditioning, and
commercial refrigeration equipment."
Neither §§ 34-31-18 through 34-31-35, Ala. Code 1975, nor the
Board's administrative regulations, rr. 440-X-1 through 440-X-6, Ala.
Admin. Code (HACR), contain a definition of "life safety." When a term
is not defined in a statute, the commonly accepted definition of the term
4
CL-2023-0795
At the hearing on October 16, 2019, the Board’s investigators
testified regarding 6 life-safety violations and 8 minimum-standard
violations from Blanchard's HVAC installation at Gatti's house, and 6
life-safety violations and 25 minimum-standard violations from
Blanchard's HVAC installation at Feld's house.
Blanchard testified that he had been served with the summons and
administrative complaint pertaining to the Gatti HVAC installation.
Blanchard said that his senior technician had performed the work at the
Gatti installation. Blanchard admitted that the technician had not
properly installed the HVAC system. Blanchard said that after Gatti had
called him to complain, he had sent the technician back to Gatti's house
to make repairs. After Gatti had contacted Alabama Power to complain,
Blanchard said, he returned to Gatti's house. Gatti would not allow
Blanchard to fix the problems with the system. Subsequently, Blanchard
said, he realized that the technician had had a drug problem, and he
terminated the technician's employment. Blanchard presented evidence
that the technician had also stolen Blanchard's work van.
should be applied. Ex parte City of Millbrook, 304 So. 3d 202, 206 (Ala.
2010). Applying this general rule of construction to "life safety," those
violations would include violations posing a risk of life or public safety.
5
CL-2023-0795
Blanchard testified that he had been served with the summons and
administrative complaint pertaining to the Feld HVAC installation. He
said that Feld had never contacted him regarding problems with the
HVAC installation. Blanchard said that Feld had contacted him when
the underside of Feld's house had flooded in January 2019. Blanchard
said that he had gone underneath the house and that the furnace had
been in good condition. Blanchard said that he had sent his technician
to rewrap the ductwork that had been damaged by the flood. Blanchard
acknowledged that this had been the same technician that he later fired.
During his testimony, Blanchard discussed each of the life-safety
and minimum-standard violation allegations. Blanchard admitted to
some of the allegations and denied others.
On February 10, 2020, the hearing officer found that Blanchard had
committed 12 life-safety violations and 33 minimum-standard violations
as outlined in the administrative complaint. The hearing officer's
recommendation provided, in pertinent part, as follows:
"Blanchard appeared at the hearing and testified.
Blanchard admitted nine life safety violations and 19
minimum standard violations between the two jobs
Blanchard argued that the work on the Gatti job was
performed by [the technician] who had a drug problem.
Therefore, Blanchard argued he should not be held
6
CL-2023-0795
accountable because [the technician's] drug use was
unforeseen. Blanchard also argued that many of the
violations on the Feld job occurred as a result of other workers
going under Feld's house after a flood who caused or created
the violations while they performed other repairs.
"HACR Administrative Code Section 440-X-3-.09 clearly
states, in pertinent part:
" 'The person in responsible charge must
direct the projects involving the installation or
service and repair of heating, air conditioning or
refrigeration systems under Alabama law. The
person in responsible charge must be a full-time
employee, owner, partner, or corporate officer of
the partnership, corporation, business trust, or
other legal entity. This person in responsible
charge must possess the requisite skill,
knowledge, and experience and have the
responsibility to supervise, direct, manage, and
control the installation, service, or repair activities
of the business entity with which he is affiliated.
The Board shall examine the technical and
personal qualifications of the person in responsible
charge and may investigate and/or examine that
person's qualifications.'
"Blanchard testified he was the person in responsible
charge for both job sites and he also testified he understood
that as the person in charge, he was liable for any violations
found on work performed under his license.
"Blanchard described [the technician] as a seasonal
worker but also called him one of his best technicians. [The
technician] performed the work on the Gatti house in October
2018. There is no evidence [the technician] was using drugs
on or around October 2018. Blanchard relied on the testimony
of another employee who was on the Gatti job site with [the
7
CL-2023-0795
technician] who described [the technician] as 'agitated' and
acting like he did not want to be there. Those two descriptions
are insufficient to prove [the technician] was using drugs or
under the influence of drugs during October 2018.51
Blanchard did not know of [the technician's] alleged drug
problem until August 2019 after [the technician] stole one of
Blanchard’s work vans and a police officer told him [the
technician] had a history. Blanchard did not go out to the
Gatti home and review or supervise [the technician's] work in
October 2018. Blanchard allowed [the technician] to work by
himself or with another employee. After reviewing the Gatti
complaint and reviewing the pictures, Blanchard admitted
the work was not up to Blanchard's standards. Furthermore,
Blanchard admitted three life safety violations and 11
minimum standard violations on the Feld home. Blanchard
maintained other workers from other disciplines created the
violations Spivey [the Board's investigator] found after they
worked under the home following a flood. Blanchard testified
he went under Feld's home after the flood just to inspect the
furnace but did not review all the work. Regardless,
Blanchard failed to identify the other workers from the other
disciplines who went under the home and provide any credible
evidence to refute Spivey's findings.
"Counsel for the Board recommended revocation of
Blanchard's certification. Based upon the totality of the
evidence and considering the number of life safety violations
as well as the number of minimum standard violations
between the two job sites and his prior discipline with HACR,
the facts warrant a severe punishment. The undersigned has
carefully considered all the evidence in this case. Blanchard's
violations support revocation of his license pursuant to ALA.
CODE [1975,] § 34-31-32(b) (1975). The undersigned
recommends to the Board that Blanchard's certification be
REVOKED."
8
CL-2023-0795
___________________
"51Blanchard appealed to an exception under Respondeat
Superior, unforeseen acts of an employee. Black's Law
Dictionary defines Respondent Superior as a Latin phrase
literally meaning 'let the superior make answer.' Blanchard
contended Best used drugs and, therefore, performed work
outside the scope of his employment. The evidence did not
support Blanchard's defense. It appears highly likely that [the
technician] was under the influence during his work in
Tuscaloosa in August 2019, but there are not similar facts to
support the October 2018 work period and one cannot justly
conclude that [the technician] may have been using drugs in
October 2018 because his behavior was so bad in August 2019.
What is most egregious is Blanchard’s failure to review [the
technician's] work on the Gatti home."
On March 11, 2020, the Board entered an order adopting the
hearing officer's recommendation to revoke Blanchard's license and
attaching a copy of that recommendation to its order. The Board's order
also stated that, "Blanchard of A & E Service Company is guilty of
violating Section 34-31-21, Code of Alabama 1975." 3 On April 9, 2020,
Blanchard filed an appeal of the Board's revocation order with the circuit
court.
3Section 34-31-21, Ala. Code 1975, concerns the officers, meetings,
powers, and duties of the Board.
9
CL-2023-0795
B. Case Number CV-22-903693
On May 27, 2021, Naomi Oden filed a consumer complaint with the
Board alleging that A & E Service Company had improperly installed an
HVAC system in her house, which system had cost $12,185.04.
Specifically, Oden alleged:
"Since May 2020, I have dealt with lies, missed
appointments, unanswered texts, and a failed HVAC system.
Poor workmanship led to [an] improperly installed system
which froze over and continues to freeze, resulting in water
damage and mold in my home. A & E is well aware. As of
this day, May 27, 2021, I still do not have a functioning
system. Blanchard told me I needed to purchase a new larger
system in order to have heat and [air conditioning] in my
bedroom. At his urging, I purchased a larger system and had
it financed by Alabama Power, again at his urging. This
turned out to be false. The attached does give proof and
detail."
Oden attached numerous text messages and other information regarding
the inoperable HVAC system and Blanchard's failure to respond or repair
the system.
On September 22, 2022, the Board issued a summons and
administrative complaint alleging that Blanchard had violated § 34-31-
18 et seq., Ala. Code 1975, and Chapter 440-X-5 of the Alabama
Administrative Code (HACR). The administrative complaint contained
minimum-standard violations allegedly violated by Blanchard in
10
CL-2023-0795
installing Oden's HVAC system.
At the administrative hearing on October 12, 2022, the Board's
investigator testified that Oden's HVAC system had not been working
when he inspected it on July 20, 2021. The investigator testified
regarding three minimum-standard violations found during his first
inspection. The investigator said that when he inspected Oden's HVAC
system again on October 7, 2021, the HVAC system was working.
Blanchard testified that he had 30 years of experience and that he
believed that he had installed approximately 15,000 HVAC units during
his career. He said that he had been unable to remedy duct-work
problems in Oden's HVAC system because she would not allow him to
address the issue. Blanchard admitted that his bond company and
insurance company had paid $20,000 to Oden for his improper work. The
record of Blanchard's 2017 disciplinary action and the revocation order
entered in 2020 were admitted into evidence.
On November 8, 2022, the hearing officer found that Blanchard
had committed three minimum-standard violations as outlined in the
administrative complaint. The hearing officer's recommendation
provided, in pertinent part, as follows:
11
CL-2023-0795
"Blanchard appeared at the hearing and testified.
Substantial evidence proved Blanchard committed three
minimum standard violations on the Oden installation.
"HACR Administrative Code Section 440-X-3-.09 states,
in pertinent part:
" '(1) The person in responsible charge must
direct the projects involving the installation or
service and repair of heating, air conditioning or
refrigeration systems under Alabama law. The
person in responsible charge must be a full-time
employee, owner, partner, or corporate officer of
the partnership, corporation, business trust, or
other legal entity. This person in responsible
charge must possess the requisite skill,
knowledge, and experience and have the
responsibility to supervise, direct, manage, and
control the installation, service, or repair activities
of the business entity with which he is affiliated.
The Board shall examine the technical and
personal qualifications of the person in responsible
charge and may investigate and/or examine that
person's qualifications.
"…
" '(3) The certified contractor is responsible
for all electrical and gas piping work related to
HVAC equipment performed on residential
property or HVAC and/or refrigeration equipment
on commercial property, and is considered by the
Board as the person in responsible charge for such
work should the work fail to meet the minimum
standards under these rules.'
"Blanchard was the person in responsible charge for the
Oden job and he acknowledged that as the person in charge,
12
CL-2023-0795
he was liable for any violations found on work performed
under his license. Counsel for the Board recommended
revocation of Blanchard's certification.
"Counsel for the Board argued that Blanchard's repeated
conduct is grounds for such a discipline. Blanchard has had
four consumer complaints filed against him since 2017 and in
at least two cases he was not responsive or failed to show up
when the complainants attempted to get him to come fix their
problems. This most recent complaint came after the Board
recommended Blanchard's certification be revoked.
"Counsel for Blanchard argued the Board's March 11,
2020, Order to revoke Blanchard's certification, cannot be
considered since it has been appealed to Circuit Court.
Counsel for Blanchard also argued that Blanchard was
charged with three minimum standard violations and by
themselves would not warrant revocation of certification.
"The purpose of the Board is outlined in Ala. Code § 34-
31-19, '...to certify qualified contractors on a state-wide basis
in order to protect the public…' The penalties for violations
are outlined in Ala. Code [1975,] § 34-31-32(b) and
Administrative Rules and Regulations § 440-X-6-.08. The
Administrative rules state, in pertinent part:
" '(1) Based upon the evidence presented at
the administrative hearing or pursuant to
informal disposition, the Board may take one or
more of the following actions.
" '…
" '(c) Find the respondent guilty of
any or all the violations alleged in the
administrative complaint. If the Board
finds the Respondent guilty of one or
more of the violations alleged in the
13
CL-2023-0795
administrative complaint, the Board
may take one or more of the following
disciplinary actions against the
respondent:
" '1. Reprimand the
Respondent.
" '2. Require
additional continuing
education hours.
" '3. Suspend the
respondent's certification.
" '4. Revoke the
respondent’s certification.
" '5. Levy a fine not to
exceed $2,000.00 per
violation.'
"The undersigned has carefully considered all the
evidence in this case. Blanchard has previously been
subjected to discipline by the Board, including an
administrative fine, mandatory classes, and revocation of his
certification. Blanchard continues to engage in substandard
work. Blanchard's violations in this matter, along with his
prior discipline, support revocation of his license pursuant to
Ala. Code 1975 § 34-31-32(b) (1975). The undersigned
recommends to the Board that Blanchard’s certification be
revoked."
On November 17, 2022, the Board adopted the hearing officer's
recommendation to revoke Blanchard's license and attached a copy of
that recommendation to its order. The Board's order also stated,
14
CL-2023-0795
"Blanchard is guilty of violating Section 34-31-21, Code of Alabama
1975." On December 9, 2022, Blanchard filed a notice of appeal with the
circuit court.
C. Appeals to Circuit Court
Blanchard's appeals in case CV-20-901357 and case CV-22-903693
were consolidated by the circuit court. The parties filed briefs in both
appeals. In his appeal in case CV-20-901357, Blanchard argued that the
Board's order revoking his license was an abuse of discretion because he
satisfied his obligations to the consumers' complaints through full
payment to Gatti and Feld pursuant to Blanchard's insurance bond.
With regard to case CV-22-903693, Blanchard argued that the minimum-
standard violations found in his installation of Oden's HVAC system did
not support a revocation of his license.
Following a hearing, the circuit court entered an order on July 20,
2023, requiring the Board
"to file with this Court a complete record of all complaints
made against any and all person(s) and or entities who were
issued, hold or held a Certification from the [Board] together
with the dispositions of each and every complaint for the time
period between January 1, 2016 and January 1, 2023. These
documents may be filed under seal."
15
CL-2023-0795
The Board filed a motion to reconsider, which was denied. On August 25,
2023, the Board timely filed a mandamus petition with this court
challenging the discovery order.
On October 18, 2023, the circuit court entered a final judgment
setting aside both of the Board's orders revoking Blanchard's license. The
judgment provided:
"The above styled consolidated causes of action came
before this Court on Appeal for Trial De Novo following
adverse judgments issued by the State of Alabama Board of
Heating, Air Conditioning and Refrigeration Contractors,
revoking Elijah Blanchard's certification to engage in the
heating and air conditioning and refrigeration services
business in the State of Alabama. Upon full and fair
consideration of the record on appeal and all of the pleadings
since filed, the Court finds that the judgments by the State of
Alabama Board of Heating, Air Conditioning and
Refrigeration Contractors, revoking Elijah Blanchard's
certification to engage in the heating and air conditioning and
refrigeration services business in the State of Alabama
violated Mr. Blanchard's Fourteenth Amendment
Constitutional Rights. To wit:
"The State of Alabama Board of Heating, Air
Conditioning and Refrigeration Contractors' application of
Alabama Code [1975,] Section 34-31-21 to Mr. Blanchard is
an incorrect and improper application of that particular
statute Alabama Code [1975,] Section 34-31-21 deals with the
Board of Heating, Air Conditioning, and Refrigeration
Contractors Officers: meetings: powers and duties. This
section delineates what the 'Board' is authorized to do. There
is no rational basis upon which to allege that Mr. Blanchard
could have violated Alabama Code [1975,] Section 34-31-21.
16
CL-2023-0795
"Wherefore, it is hereby ordered, adjudged and decreed
that the order of the State of Alabama Board of Heating, Air
Conditioning and Refrigeration Contractors revoking Elijah
Blanchard's certification to engage in the heating and air
conditioning services in the State of Alabama issued on March
11, 2020, is hereby set aside, and declared null and void,
having no legal force or effect.
"And
"Wherefore, it is hereby ordered, adjudged and decreed
that the order of the State of Alabama Board of Heating, Air
Conditioning and Refrigeration Contractors revoking Elijah
Blanchard's certification to engage in the heating and air
conditioning services in the State of Alabama issued on
November 17, 2022, is hereby set aside, and declared null and
void, having no legal force or effect."
On October 19, 2023, the Board filed a motion to dismiss its
mandamus petition, which this court granted. On November 8, 2023, the
Board filed a notice of appeal. 4
4Rule 4(a)(3), Ala. R. App. P., provides "[a]ny error or ground of
reversal or modification of a judgment or order which was asserted in the
trial court may be asserted on appeal without regard to whether such
error or ground has been raised by motion in the trial court under Rule
52(b) or Rule 59 of the [Ala. R. Civ. P.]" The Committee Comments to
Rule 4(a), Ala. R. App. P., explain:
"The provision of subdivision (a)(3) in the last sentence
permitting assertion in the appellate court of any matter
raised or asserted in the trial court whether such matter was
raised by motion for new trial under [Ala. R. Civ. P.] Rule 59
or for motion of amendment of findings of fact under [Ala. R.
17
CL-2023-0795
II. Analysis
The Board argues that the circuit court improperly found that the
orders revoking Blanchard's license were null and void due to the citation
of an incorrect code section when (1) Blanchard had notice, prior to the
hearings, of the statute he was alleged to have violated, and (2) the
Board's orders adopted the hearing officer's recommendations which set
out in detail Blanchard's violations.
Civ. P.] Rule 52(b) is a departure from existing Alabama
practice. The rule does not, however, extend the right to raise
for the first time on appeal new matter not presented to the
trial court or upon which the trial court had no opportunity to
pass.
"The requirement retains the practice that matters
raised on appeal must have been presented to the trial court
at some stage. Thus matters which can only be raised by post-
trial motion must be so asserted. The provision is intended to
avoid the necessity of repeated assertions of the same point
below. Once ruled on by the trial court in some form, the point
is preserved for review on appeal."
Here, the circuit court, acting in its limited role in reviewing
appeals from an administrative agency, concluded that the Board's
orders were null and void. The Board's appeal of the circuit court's
judgment is properly before this court without the need of a postjudgment
motion.
18
CL-2023-0795
The Board, as a state agency, has only those powers conferred upon
it by the legislature. Hinkle Metals & Supply Co. v. Ohio Cas. Ins. Co.,
909 So. 2d 843, 845 (Ala. Civ. App. 2005). As a state agency, the Board
is subject to the Alabama Administrative Procedure Act ("the AAPA"), §
41-22-1 et seq., Ala. Code 1975. See § 34-31-34, Ala. Code 1975; r. 440-
X-6-.08(4), Ala. Admin. Code (HACR).
Section 41-22-20(k), Ala. Code 1975, of the AAPA provides:
"(k) Except where judicial review is by trial de novo, the
agency order shall be taken as prima facie just and reasonable
and the court shall not substitute its judgment for that of the
agency as to the weight of the evidence on questions of fact,
except where otherwise authorized by statute. The court may
affirm the agency action or remand the case to the agency for
taking additional testimony and evidence or for further
proceedings. The court may reverse or modify the decision or
grant other appropriate relief from the agency action,
equitable or legal, including declaratory relief, if the court
finds that the agency action is due to be set aside or modified
under standards set forth in appeal or review statutes
applicable to that agency or if substantial rights of the
petitioner have been prejudiced because the agency action is
any one or more of the following:
"(1) In violation of constitutional or statutory
provisions;
"(2) In excess of the statutory authority of the
agency;
"(3) In violation of any pertinent agency rule;
19
CL-2023-0795
"(4) Made upon unlawful procedure;
"(5) Affected by other error of law;
"(6) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
"(7) Unreasonable, arbitrary, or capricious,
or characterized by an abuse of discretion or a
clearly unwarranted exercise of discretion."
In Alabama Department of Mental Health v. Nobles Group Homes,
Inc., 343 So. 3d 1140, 1145 (Ala. Civ. App. 2021), this court stated:
"Section 41-22-21 provides that the judgment of a circuit
court reviewing an agency's action under the AAPA is subject
to appeal to the appropriate court, which, in this case, is this
court. This court reviews the circuit court's judgment without
any presumption of correctness. See Colonial Mgmt. Grp.,
L.P. v. State Health Plan. & Dev. Agency, 853 So. 2d 972, 974
(Ala. Civ. App. 2002). Further, '[n]either this court nor the
[circuit] court may substitute its judgment for that of the
administrative agency.' Id. at 975."
In support of its position that the circuit court should have treated
the incorrect citation as harmless error, the Board cites Vining v. Board
of Dental Examiners of Alabama, 492 So. 2d 607 (Ala. Civ. App. 1985).
In Vining, the licensee had argued that the Board of Dental Examiners'
order was defective because it did not show that the order was approved
by at least a majority of the board and was not under that board's official
20
CL-2023-0795
seal. This court held, as to the majority-vote contention, that the
appellate courts must presume that the proceedings below were correctly
held unless the contrary appears in the record and that the licensee had
not met that burden. This court held that the absence of an official seal
on the board's order was not a denial of due process and, if anything, was
a harmless error.
The Board also cites Royer v. State, 542 So. 2d 1301 (Ala. Crim.
App. 1988), wherein the Alabama Court of Criminal Appeals upheld the
defendant's conviction for driving under the influence of alcohol where
the defendant was properly charged under the Uniform Traffic Ticket
despite the ticket referencing an incorrect code citation. The Court of
Criminal Appeals held that the incorrect citation of a code section did not
void an indictment which otherwise stated an offense, and, in the absence
of a showing of actual prejudice to the defendant, the reference to the
incorrect code section should be treated as mere surplusage.
In the present case, the circuit court had subject-matter jurisdiction
over Blanchard's appeals from the Board's orders revoking his license. §
41-22-20, Ala. Code 1975. The Board's orders cited to § 34-31-21, Ala.
Code 1975. Section 34-31-21 concerns the officers, meetings, powers, and
21
CL-2023-0795
duties of the Board. Clearly, the Board could not revoke Blanchard's
license based on § 34-31-21, which the circuit court recognized as well.
Nevertheless, the Board's administrative complaints set forth the life-
safety violations and minimum-standard violations in Blanchard's or his
employees' work on the three consumers' HVAC systems. Blanchard had
notice of the hearings on the administrative complaints and testified at
the hearings on his own behalf. The Board's orders revoking Blanchard's
license adopted the hearing officer's findings and recommendations in
their entirety. The citation to § 34-31-21 in the Board's orders was
harmless error. See Rule 61, Ala. R. Civ. P. ("No error in either the
admission or the exclusion of evidence and no error or defect in any ruling
or order or in anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting aside a verdict or
for vacating, modifying, or otherwise disturbing a judgment or order,
unless refusal to take such action appears to the court inconsistent with
substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties."). "An agency decision is harmless
'when a mistake of the administrative body is one that clearly had no
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bearing on the procedure used or the substance of decision reached.' "
Animal Legal Def. Fund v. United States Dep't of Agric., 789 F.3d 1206,
1224 n.13 (11th Cir. 2015) (quoting U.S. Steel Corp. v. United States
Env't Prot. Agency, 595 F.2d 207, 215 (5th Cir. 1979) (construing the
federal Administrative Procedure Act)). Accordingly, the circuit court
erred in concluding that the Board's orders were null and void due to the
citation to § 34-31-21.
We reverse the circuit court's judgment and remand for entry of a
judgment or for further proceedings pursuant to the AAPA.5
REVERSED AND REMANDED.
Edwards and Fridy, JJ., concur in the result, without opinions.
Lewis, J., dissents, with opinion, which Moore, P.J., joins.
5We pretermit discussion of the Board's arguments that the circuit
court failed to give the Board's orders revoking Blanchard's license a
presumption of correctness and that there was overwhelming evidence
that Blanchard had committed life-safety violations and minimum-
standard violations.
23
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LEWIS, Judge, dissenting.
I respectfully dissent from the main opinion's reversal of the
judgment of the Jefferson Circuit Court ("the circuit court").
In this case, the circuit court's final judgment provided:
"The above styled consolidated causes of action came
before this Court on Appeal for Trial De Novo following
adverse judgments issued by the State of Alabama Board of
Heating, Air Conditioning and Refrigeration Contractors,
revoking Elijah Blanchard's certification to engage in the
heating and air conditioning and refrigeration services
business in the State of Alabama. Upon full and fair
consideration of the record on appeal and all of the pleadings
since filed, the Court finds that the judgments by the State of
Alabama Board of Heating, Air Conditioning and
Refrigeration Contractors, revoking Elijah Blanchard's
certification to engage in the heating and air conditioning and
refrigeration services business in the State of Alabama
violated Mr. Blanchard's Fourteenth Amendment
Constitutional Rights. To wit:
"The State of Alabama Board of Heating, Air
Conditioning and Refrigeration Contractors' application of
Alabama Code [1975,] Section 34-31-21 to Mr. Blanchard is
an incorrect and improper application of that particular
statute. Alabama Code [1975,] Section 34-31-21 deals with the
Board of Heating, Air Conditioning, and Refrigeration
Contractors Officers: meetings: powers and duties. This
section delineates what the 'Board' is authorized to do. There
is no rational basis upon which to allege that Mr. Blanchard
could have violated Alabama Code Section 34-31-21.
"Wherefore, it is hereby ordered, adjudged and decreed
that the order of the State of Alabama Board of Heating, Air
Conditioning and Refrigeration Contractors revoking Elijah
24
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Blanchard's certification to engage in the heating and air
conditioning services in the State of Alabama issued on March
11, 2020, is hereby set aside, and declared null and void,
having no legal force or effect.
"And
"Wherefore, it is hereby ordered, adjudged and decreed
that the order of the State of Alabama Board of Heating, Air
Conditioning and Refrigeration Contractors revoking Elijah
Blanchard's certification to engage in the heating and air
conditioning services in the State of Alabama issued on
November 17, 2022, is hereby set aside, and declared null and
void, having no legal force or effect."
The Alabama Board of Heating, Air Conditioning, and
Refrigeration Contractors ("the Board"), without filing a postjudgment
motion challenging that judgment, appealed to this court.
On appeal, the Board raises the following issues: (1) "[w]hether
mistyping the correct code section on the … Board's final order to revoke
[Elijah] Blanchard's license, appropriately allowed the Circuit Court to
determine the Board's Orders of revocation were null and void" and (2)
"[w]hether the Circuit Court improperly substituted her judgment for
that of the administrative board responsible for overseeing licenses for
heating and air conditioning systems."
The main opinion reverses the circuit court's judgment with respect
to the first issue. The resolution of that issue hinges on the main
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CL-2023-0795
opinion's acceptance of the Board's argument that the circuit court erred
in setting aside the Board's order because, the Board says, its reliance on
the wrong code section was harmless error and, therefore, Blanchard was
not deprived of his due-process rights. However, I note that the Board
has raised its argument regarding harmless error for the first time on
appeal. "This Court cannot consider arguments raised for the first time
on appeal; rather, our review is restricted to the evidence and arguments
considered by the trial court." Andrews v. Merritt Oil Co., 612 So. 2d 409,
410 (Ala. 1992); see also J.M.L. v. Tuscaloosa Cnty. Dep't of Hum. Res.,
[Ms. CL-2023-0765, Apr. 26, 2024] ___ So. 3d ___, ___ (Ala. Civ. App.
2024) (holding that issues regarding due process must be preserved for
review); see also Stowe v. Alabama Bd. of Pardons and Paroles, 245 So.
3d 610, 616 (Ala. Civ. App. 2017) (holding that, because Michael Stowe
failed to raise his argument "that he was not aware of the proposed order
submitted to the trial court by the Board [of Pardons and Paroles]" in the
circuit court, that argument was waived); and Black Bear Sols. v. State
Dep't of Ed., 330 So. 3d 840, 848 (Ala. Civ. App. 2021) (holding that an
argument was waived when "Black Bear failed to [make that argument]
before the trial court or to the Department [of Education.])"
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CL-2023-0795
In Shiver v. Butler County Board of Education, 797 So. 2d 1086,
1088-89 (Ala. Civ. App. 2000), this court, quoting Head v. Triangle
Constr. Co., 274 Ala. 519, 522, 150 So. 2d 389, 392 (1963), explained:
" 'The general rule is that the appellate court will review
only questions that are raised by the record. This rule is
premised on the doctrine that the trial court should first have
the opportunity to rule on all points. The duty of an appellate
court is to review the action of the lower court to ascertain
whether or not error was committed; it is not to entertain any
issue whatsoever that parties wish to raise. All reviewable
matters stem solely from the record. … And it has been stated
by this court that it would review a case only on the same
theory that was presented to the trial court. …' "
As the main opinion points out,
"Rule 4(a)(3), Ala. R. App. P., provides '[a]ny error or
ground of reversal or modification of a judgment or order
which was asserted in the trial court may be asserted on
appeal without regard to whether such error or ground has
been raised by motion in the trial court under Rule 52(b) or
Rule 59 of the [Ala. R. Civ. P.]' "
___ So. 3d at ___ n.4. (Emphasis added). Moreover, the Committee
Comments to Rule explain, in pertinent part:
"The rule does not ... extend the right to raise for the first time
on appeal new matter not presented to the trial court or upon
which the trial court had no opportunity to pass.
"The requirement retains the practice that matters
raised on appeal must have been presented to the trial court
at some stage. Thus matters which can only be raised by post-
trial motion must be so asserted. The provision is intended to
27
CL-2023-0795
avoid the necessity of repeated assertions of the same point
below. Once ruled on by the trial court in some form, the point
is preserved for review on appeal."
(Emphasis added).
In Shiver v. Butler County Board of Education, at the trial-court
level, Eustice Shiver had failed to deny that the 10-year statute of
limitations set forth in § 6-2-38(m), Ala. Code 1975, was applicable, and
he had failed to "assert a counterargument regarding the 10-year statute
of limitations in § 6-2-33(3)[, Ala. Code 1975]." 797 So. 2d at 1089. The
trial court "held that § 6-2-38(m) was the applicable statute of
limitations." Id. Shiver, without filing a postjudgment motion, appealed
to this court. On appeal, Shiver "argue[d] that the trial court erred in
holding the applicable statute of limitations to be § 6-2-38(m), Ala. Code
1975, rather than § 6-2-33(3)." Id. at 1088. This court held that Shiver
had failed to make that argument to the trial court and, therefore, the
argument was not preserved for this court's review.
In this case, the judgment states that that the circuit court held a
trial de novo; however, another order in the record, as well as the Board's
brief, indicate that the circuit court actually held an oral argument, not
a trial, on June 8, 2023. The Board chose not to order a transcript of the
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CL-2023-0795
June 8, 2023, hearing. Therefore, this court does not have the benefit of
knowing whether the Board's argument was raised at that hearing. An
appellant "ha[s] the burden of supplying this court with a correct and
complete record on appeal." Alabama Dep't of Env't Mgmt. v. James, 745
So. 2d 276, 278 (Ala. Civ. App. 1999). In Ex parte Howell, 974 So. 2d 304,
306 (Ala. 2007), our supreme court held that, when an appellant failed to
provide the court with a complete record, the supreme court was "unable
to determine whether [the appellant's] contentions … were made for the
first time on appeal." The supreme court explained that it could not
assume that the appellant's arguments on appeal had been presented to
the circuit court.
Similarly, in the present case, the record does not indicate that the
Board "asserted in the [circuit] court" that the citation to the incorrect
code section was harmless error such that no due-process violation had
occurred. Because we do not have a transcript of the June 8, 2023,
hearing, we may not presume that the Board raised its harmless-error
argument during the hearing. Since the record does not affirmatively
show that the Board's first argument was preserved for this court's
review, I would affirm the circuit court's judgment on that point.
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CL-2023-0795
With respect to the second issue raised by the Board, I note that
there is no indication that the circuit court "substituted [its] judgment"
for the Board's judgment. Instead, the circuit court's judgment
specifically and solely relied on the "incorrect and improper application
of … Alabama Code [1975,] Section 34-31-21." Therefore, I cannot
conclude that the circuit court's judgment is due to be reversed with
respect to the Board's second argument.
Based on the foregoing, I would affirm the circuit court's judgment.
Because the main opinion reverses the trial court's judgment, I
respectfully dissent.
Moore, P.J., concurs.
30