Robert’s Rules of Order – Waiver of Arguments on Appeal


Verano Alabama, LLC v. Alabama Medical Cannabis Commission, [Ms. CL-2023-0831, Apr. 19, 2024] __ So. 3d __ (Ala. Civ. App. 2024). The court (Per curiam, all judges concur) affirms the Montgomery Circuit Court’s judgment concluding that the Alabama Medical Cannabis Commission’s (“AMCC”) was authorized to rescind an integrated-facility license previously awarded to Verano Alabama, LLC (“Verano”).

The court first explains that “a petition for judicial review filed pursuant to the AAPA [Alabama Administrative Procedure Act] does not violate Art. I, § 14, of the Alabama Constitution of 2022” providing that state agencies are immune from suit. Ms, *7, n. 7. This is so because “[a]s the respondent, the state agency is responsible for transmitting the administrative record to be reviewed. See Ala. Code 1975, § 41-22-20(g). The action does not seek to impose civil liability upon the state. The action seeks only judicial review of the record transmitted by the respondent agency to determine whether the agency action was validly rendered and whether it should be affirmed, modified, or reversed, any equitable and legal relief being only incidental to the determination of the review. See Ala. Code 1975, § 41-22-20(k).” Ibid.

The final sentence in the circuit court’s order states “[f]urthermore, Robert’s Rules of Order specifically contemplates the right of an assembly to vote to rescind a previously adopted motion, thereby nullifying what had been done.” Ms. *11. In affirming, the court notes in its principal brief Verano did not challenge the third alternative ground for the circuit court’s judgment – that Robert’s Rules of Order supplied the AMCC with sufficient procedural authority to rescind the decision awarding Verano an integrated-facility license.” Ms. *16. The court explains:

“When a trial court enters conclusions of law stating alternative legal grounds for its judgment, the failure of an appellant to show error as to each ground in his or her opening brief constitutes a waiver of any argument as to the omitted ground and results in an automatic affirmance of the judgment.” Austin v. Providence Hosp., 155 So. 3d 1028, 1031 (Ala. Civ. App. 2014). That rule of automatic affirmance applies in appeals from a judgment of a circuit court adjudicating a petition for judicial review pursuant to § 41- 22-20, even though the appellate court’s standard of review is de novo in such cases. See Alabama Dep’t of Mental Health v. Nobles Grp. Homes, Inc., 343 So. 3d 1140, 1146 (Ala. Civ. App. 2021) …. Verano waived any argument as to that omitted ground despite making the argument later in its reply brief. See Alabama Dep’t of Mental Health, supra; see also Meigs v. Estate of Mobley, 134 So. 3d 878, 889 n.6 (Ala. Civ. App. 2013) (“Arguments not raised in the appellant’s initial brief are deemed waived; arguments made for the first time in the reply brief are not addressed by the appellate courts.”)

Ms. **17-18.

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