428 So. 2d 48 | Ala. Civ. App. | 1982
This is an unemployment compensation case.
Mac Del Health Care, Inc., was determined to be a successor employer to Tompkins Nursing Home, Inc., under section
Because of the intensely factual nature of this case, we shall recount the sequence of events leading up to this appeal in considerable detail. Tompkins Nursing Home, Inc., was engaged in the business of providing health care at a Birmingham facility leased from Carrie Lee Tompkins. The lease was conditioned on the fact that:
"[Tompkins] shall operate said Nursing Home in accord with all of the provisions of the State Department of Health, and that if at any time their license to operate is in [jeopardy] or if the Nursing Home is placed upon probation by said State Health Department, or if said license is revoked then this lease shall be immediately terminated and the premises revert to the Lessor."
Carrie Lee Tompkins, as lessor, retained a security interest in "all the furniture, fixtures, machines, appliances, inventories and supplies" located in the facility. Following a hearing on August 20, 1975, Tompkins Nursing Home's license was revoked for fraud and failure to follow State Health Department guidelines. Prior to that hearing, however, on January 13, 1975, Tompkins Nursing Home was notified by the estate of Carrie Lee Tompkins that its possessory interest in the property had been terminated and was ordered to vacate the premises within ten days. The revocation was to become effective at midnight August 31, 1975, and Tompkins was notified to relocate its patients prior to that date.
At some point around August 1, 1975, Delmus Hyche, a nursing home operator in the Jefferson County area, was contacted by an attorney for the guardian of Carrie Lee Tompkins to see if he was interested in operating a nursing home at the Tompkins facility. After inspecting the premises and ascertaining information about obtaining a license, Hyche agreed to lease the facility on behalf of Mac Del from the estate of Carrie Lee Tompkins. The lease was to commence on September 1, 1975 and was conditioned on the Tompkins estate's ability to gain possession of the premises. It further provided that Mac Del was to acquire:
"The land and buildings located at 2211 16th Street, S.W. (Ishkooda), Birmingham, Alabama, and known as Tompkins Nursing Home for use and [occupation] by the Lessee as Nursing Home for the term of two (2) years. Also subject to this lease is all of the personal property located at such premises used in the operation of the nursing home and owned by Lessor and/or Tompkins Nursing Home, *50 Inc., including but not limited to the following: furniture, fixture[s], office machines, files, appliances, inventories and supplies.
"Lessee shall have the right to use the name: `Tompkins Nursing Home' for the period of the Lease."
Hyche was not allowed to enter the nursing home prior to the commencement of Mac Del's lease on September 1, 1975. When he did enter the facility between 7:00 a.m. and 8:00 a.m. on that date he was accompanied by a security guard provided by the Birmingham Police Department following rumors of threats against him. Thirty patients of Tompkins remained at the facility at the time that Hyche arrived even though management had been notified previously to relocate the patients in other facilities. The Tompkins staff had been dismissed by a letter from the Tompkins estate; however, some former employees were on the premises at the time. Hyche gave them applications from Mac Del, and approximately twenty-eight were hired, including the former director of nursing for Tompkins who was retained to oversee Mac Del's business. Some of the former Tompkins employees were turned down because they did not meet Hyche's standards, and the former director of nursing was later dismissed.
The issue in this appeal is whether Mac Del Health Care, Inc., is a successor in interest to Tompkins Nursing Home, Inc., under section
"(a) `Employer' . . . shall mean:
"(4) Any employing unit . . . which:
"a. Acquired the organization, trade or business, or substantially all the assets thereof, of another employing unit which at the time of such acquisition was an employer subject to this chapter. . . ."
Thus, from the language of section
The director of the Department of Industrial Relations argues that Mac Del is liable for the assessment based on Tompkins's experience rating because it acquired substantially all the assets and the organization, trade, or business of Tompkins. Mac Del answers that the provisions of section
In advancing the position that Mac Del should be taxed on the basis of Tompkins's experience rating, the director of the Department of Industrial Relations places great emphasis on the Connecticut case of Harris v. Egan,
Mac Del, by way of cross-appeal, claims that it should receive interest on its refund from the Department of Industrial Relations. We disagree. Section
For the foregoing reasons we find no error in the decision of the trial court.
AFFIRMED.
WRIGHT, P.J., and HOLMES, J., concur.