Full Opinion

Rel: November 13, 2026 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 OCTOBER TERM, 2026-2027 _________________________ CL-2026-0772 _________________________ Ex parte ES OpCo USA, LLC, d/b/a Veseris, and SiteOne Landscape Supply, Inc. PETITION FOR WRIT OF MANDAMUS (In re: Envirocare LLC, including its subsidiaries and acquired companies, on behalf of itself and all others similarly situated v. ES OpCo, USA, LLC, d/b/a Veseris, et al.) (Jefferson Circuit Court: CV-25-904414) MOORE, Presiding Judge. ES OpCo USA, LLC, d/b/a Veseris ("Veseris"), and SiteOne Landscape Supply, Inc. ("SiteOne"), petition this court for a writ of mandamus directing the Jefferson Circuit Court ("the circuit court") to CL-2026-0772 vacate its July 20, 2026, order denying their motions to dismiss a complaint filed against them by Envirocare, LLC ("Envirocare"), and to enter an order dismissing the complaint. We grant the petition and issue the writ. Background On October 13, 2025, Envirocare filed a class-action complaint against Veseris, SiteOne, and other fictitiously named defendants. Envirocare alleged in its complaint, among other things, that it is a licensed structural pest-control operator; that, pursuant to Ala. Code 1975, § 40-23-4(a)(4),1 and Ala. Admin. Code (Dep't of Revenue), r. 810-6- 3-.20.01,2 sales of insecticides and fungicides to licensed pest-control 1Section 40-23-4(a)(4) exempts from taxation "[t]he gross proceeds of sales of insecticides and fungicides when used for agricultural purposes or when used by persons properly permitted by the Department of Agriculture and Industries or any applicable local or state governmental authority for structural pest control work and feed for livestock and poultry, but not including prepared food for dogs and cats." 2Rule 810-6-3-20.01 provides that, when a retail purchaser purchases insecticides and fungicides that are exempt from sales taxes, the filing by the purchaser of an exemption certificate in the form set out in the Alabama Department of Revenue's regulation relieves the seller of any obligation to collect sales tax on the items purchased. 2 CL-2026-0772 operators are exempt from sales tax; and that, despite the exemption, Veseris and SiteOne, which are both suppliers to pest-control companies and are regulated by the Alabama Department of Agriculture and Industries, had, for at least 10 years, systematically charged and collected sales taxes from Envirocare and members of the proposed class, which includes other licensed operators across Alabama, on purchases of insecticides and related pest-control products. Envirocare alleged that it had notified the defendants that they had wrongfully charged Envirocare sales tax and had demanded reimbursement of the wrongful and unlawful charges the defendants had collected, that Veseris had refused to reimburse Envirocare and had offered limited future credits or discounts on future purchases, that SiteOne had not responded to Envirocare's communication, that the amount and extent of sales taxes that the defendants had wrongfully and unlawfully charged Envirocare was unknown, and that Envirocare was "moving forward with seeking reimbursement for all of the sales tax" that the defendants had wrongfully and unlawfully charged Envirocare from the State of Alabama through the Alabama Department of Revenue ("the ADOR"). In the four counts in its complaint, Envirocare asserted claims 3 CL-2026-0772 against the defendants of: (1) "breach of contract/open account"; (2) "breach of duty and wrongful collection of sales tax"; (3) "negligence per se"; and (4) "unjust enrichment and wrongful retention of funds." Envirocare subsequently amended its complaint to add a fifth count of "fraud -- misrepresentation/suppression." On February 25, 2026, SiteOne filed a motion to dismiss Envirocare's complaint, as amended. SiteOne argued in its motion that the circuit court lacked subject-matter jurisdiction over the case because, it argued, Envirocare was required to seek any relief through the exclusive remedy found in the Alabama Taxpayers' Bill of Rights and Uniform Revenue Procedures Act ("the TBOR"), Ala. Code 1975, § 40-2A- 1 et seq., and that, even if the circuit court had jurisdiction, Envirocare's claims failed as a matter of law. On that same date, Veseris joined in SiteOne's motion to dismiss.3 On May 26, 2026, Envirocare filed its opposition to the motions to dismiss. On May 28, 2026, the circuit court conducted a hearing on the motions to dismiss, and, on July 20, 2026, the 3Veseris also moved to dismiss the action for improper venue, pursuant to Rule 12(b)(3), Ala. R. Civ. P., or, in the alternative, to transfer the action to a proper venue. Veseris does not assert that argument in its mandamus petition. 4 CL-2026-0772 circuit court entered an order denying the motions. Veseris and SiteOne timely filed a petition for the writ of mandamus with this court. Issue Veseris and SiteOne ("the merchants") argue that the circuit court should have granted their motions to dismiss the case for lack of subject- matter jurisdiction and for failure to state a claim for which relief could be granted. We believe the circuit court should have granted the motions to dismiss for lack of subject-matter jurisdiction, which we find to be dispositive of this petition, so we do not address whether the case should have been dismissed for failure to state a viable claim. Standard of Review " 'A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: " '(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' " ' " Ex parte Hood, 401 So. 3d 251, 255-56 (Ala. 2024) (quoting Ex parte Alabama Dep't of Corr., 252 So. 3d 635, 636 (Ala. 2017), quoting in turn Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003), quoting in turn Ex parte BOC Grp., Inc., 823 So. 2d 1270, 1272 (Ala. 2001)). This court has recognized that "[a] petition for the writ of mandamus is the appropriate 5 CL-2026-0772 means to review the denial of a motion to dismiss for lack of subject- matter jurisdiction." Ex parte Vaughn, 419 So. 3d 56, 58 (Ala. Civ. App. 2024). This court reviews the denial of a motion to dismiss for lack of subject-matter jurisdiction de novo. Riley v. Boles, 394 So. 3d 543, 546 (Ala. 2024). In this case, the merchants argue in their mandamus petition that the complaint shows on its face that the circuit court lacked subject-matter jurisdiction over the case. When a defendant makes a facial challenge to a trial court's jurisdiction, we must accept the factual allegations in the complaint as true. See Ex parte Safeway Ins. Co. of Alabama, Inc., 990 So. 2d 344, 351 (Ala. 2008). Analysis Under Alabama law, sellers, like the merchants in this case, have a statutory duty to collect sales taxes from consumers who purchase their products. See Ala. Code 1975, § 40-23-26(a). Section 40-23-26(d) provides, in pertinent part, that, "[i]n the event that any sum is collected from a consumer that purports to be collected because of this section, whether or not the amount is actually provided for hereunder, then any such sum, except such as is collected solely because of rounding the correct amount of tax upward to the nearest cent, shall be paid to the [ADOR]." 6 CL-2026-0772 Pursuant to § 40-23-26(d), if a seller mistakenly collects taxes on exempt transactions, the seller may not retain the excess taxes but, instead, must remit the taxes to the ADOR. See Dandy's Disc. Package Store, Inc. v. Sizemore, 597 So. 2d 1370, 1372 (Ala. Civ. App. 1992) (quoting title to Ala. Acts 1987, Act No. 87-662) (holding that the purpose of § 40-23-26(d) "is 'to provide that any over collection of sales tax by a retailer from the customer is paid over to the state and not retained by the retailer as a windfall' "). The ADOR may perform audits and take any other reasonable measures to ensure that the sellers properly collect sales taxes due from its consumers and to ensure that the sellers properly remit the sale taxes to the ADOR. See Ala. Code 1975, § 40-23-83. Alabama law has long recognized that, when a seller over-collects sales taxes, the consumer, not the seller, is the party who suffers the loss, and it is the consumer who is entitled to any refund from the ADOR. See Ross Jewelers, Inc. v. State, 260 Ala. 682, 72 So. 2d 402 (1953). In J.R. Raible Co. v. State Tax Commission, 239 Ala. 41, 194 So. 560 (1939), our supreme court held that a taxpayer asserting a right to a tax refund could not maintain a civil action for damages against the state due to the doctrine of sovereign immunity. However, our supreme court later 7 CL-2026-0772 recognized that consumers who had overpaid sales taxes could obtain a refund of the overpaid taxes through civil actions commenced against the ADOR seeking declaratory or mandamus relief. See Patterson v. Gladwin Corp., 835 So. 2d 137, 147-51 (Ala. 2002) (detailing approved methods for obtaining sales-tax refunds under legislative acts passed, and caselaw decided, before 1992). In 1992, the legislature enacted the TBOR. See Ala. Acts 1992, Act No. 92-186. The overarching purpose of the TBOR "is to provide equitable and uniform procedures for the operation of the [ADOR] and for all taxpayers when dealing with the [ADOR]." Ala. Code 1975, § 40- 2A-2(1)a. (emphasis added). The provisions of the TBOR "govern all matters administered by the [ADOR] except as otherwise provided by law or by agreement entered into pursuant to lawful authority." § 40-2A-2(2) (emphasis added). Among other things, the TBOR established a new procedure for obtaining a sales-tax refund. See Ala. Code 1975, § 40-2A-7(c). Under the TBOR, if a seller overcharges a consumer, the consumer may "file a petition for refund with [the ADOR] for any overpayment of tax or other amount erroneously paid to [the ADOR] or concerning any refund that 8 CL-2026-0772 [the ADOR] is required to administer." § 40-2A-7(c)(1). Section 40-2A- 7(c)(1) further provides, in pertinent part: "In the case of a petition for refund of ... sales … taxes pursuant to Chapter 23 [of title 40], ... a petition may be filed by the consumer/purchaser who paid the tax directly to the taxpayer that collected the tax, … or by the taxpayer if the consumer/purchaser paid the tax directly to the taxpayer, provided that a refund shall not be paid to the taxpayer until after the tax has been credited or repaid to the consumer/purchaser by the taxpayer." For a consumer to obtain a sales-tax refund, the consumer generally must file a petition with the ADOR within two years of the payment of the tax. See § 40-2A-7(c)(2)a. If the ADOR denied the petition, the consumer may appeal to the Alabama Tax Tribunal, § 40-2A-7(c)(5)a., or the circuit court, § 40-2A-7(c)(5)b., within two years of the denial. "If an appeal is not filed with the Alabama Tax Tribunal or the circuit court within two years of the date the petition is denied, then the appeal shall be dismissed for lack of jurisdiction." § 40-2A-7(c)(5)c. (emphasis added). In State v. Amerada Hess Corp., 788 So. 2d 179 (Ala. Civ. App. 2000), a case in which the ADOR filed a complaint against multiple oil producers seeking damages and a declaratory judgment relating to allegedly underpaid severance taxes, the Mobile Circuit Court dismissed the case, concluding that the action was not authorized by the TBOR, 9 CL-2026-0772 which, the Mobile Circuit Court determined, provided the exclusive procedure for collecting the allegedly underpaid severance tax. On appeal, this court affirmed the judgment of dismissal, determining that the Mobile Circuit Court had "properly dismissed [the ADOR]'s claims for monetary damages and for a declaratory judgment, based on its lack of subject-matter jurisdiction resulting from [the ADOR]'s failure to follow the procedures mandated by [the TBOR]." 788 So. 2d at 185. Amerada Hess recognized that, if the TBOR provides the exclusive procedure for the collection of taxes administered by the ADOR, a circuit court lacks subject-matter jurisdiction over a civil action seeking to collect those same taxes. Two years later, in Patterson, supra, Gladwin Corporation, representing a class of corporate franchise taxpayers, commenced a civil action directly against Michael Patterson, in his official capacity as the commissioner of the ADOR, to recover a refund of franchise taxes that had allegedly been paid under a tax law that had been held unconstitutional. The Montgomery Circuit Court certified the class, and Cynthia Underwood, Patterson's successor, appealed, arguing that the case should have been dismissed for lack of subject-matter jurisdiction 10 CL-2026-0772 because Gladwin and the other class representative had not followed the refund procedures set forth in § 40-2A-7(c). The supreme court held that the doctrine of sovereign immunity barred the civil action for the refund and that the TBOR provided the exclusive means for obtaining a refund of the taxes that had been unlawfully collected under the unconstitutional statute. 835 So. 2d at 153. Citing § 40-2A-7(c)(5)c., the supreme court said: "The TBOR is jurisdictional on its face." 835 So. 2d at 153. Because the refund procedures in the TBOR had not been followed, and the action was barred by the doctrine of sovereign immunity, the supreme court vacated the class-certification order and dismissed the case. Our supreme court next considered the TBOR in General Motors Acceptance Corp. v. City of Red Bay, 894 So. 2d 650, 652 (Ala. 2004), a case in which the City of Red Bay ("the City") and Franklin County ("the County") commenced a class action against General Motors Acceptance Corporation ("GMAC") for failing to charge, collect, and remit local sales and rental taxes on its automobile-leasing transactions. After the Franklin Circuit Court certified the class, GMAC appealed. The supreme court determined that the dispositive issue on appeal was "whether the 11 CL-2026-0772 failure of the City and the County to comply with the provisions of [the TBOR] deprived the [Franklin Circuit Court] of jurisdiction to consider the class action filed by the City and the County." 894 So. 2d at 652-53. After concluding that the TBOR applies to local taxing jurisdictions,4 the supreme court discussed the holdings in Patterson and Amerada Hess, and it rejected the City and the County's contention that compliance with the TBOR was not jurisdictional. The supreme court held: "Because the failure of the City and the County to comply with the provisions of the TBOR before filing their complaint deprived the [Franklin Circuit Court] of jurisdiction, we vacate the class-certification order and remand the cause for the [Franklin Circuit Court] to enter an order of dismissal." 894 So. 2d at 656. Although the action against GMAC clearly was not barred by the doctrine of sovereign immunity, the supreme court still held that the failure to follow the refund procedures in the TBOR constituted a jurisdictional defect that required dismissal of the case. Through Patterson, General Motors, and other similar cases, see, e.g., Russell Petroleum, Inc. v. City of Wetumpka, 976 So. 2d 428 (Ala. 4The Local Tax Simplification Act of 1998, Act No. 98-192, Ala. Acts 1988, made the TBOR "equally applicable to tax assessments and tax- collection procedures by local taxing authorities .…" General Motors Acceptance Corp. v. City of Red Bay, 894 So. 2d 650, 653 (Ala. 2004). 12 CL-2026-0772 2007) (holding that the Elmore Circuit Court did not have subject-matter jurisdiction to adjudicate a sales-tax issue between municipality and gas- station owner because the municipality had not availed itself of the administrative procedures in the TBOR); accord Bonedaddy's of Lee Branch, LLC v. City of Birmingham, 192 So. 3d 1151, 1161 (Ala. 2015), our supreme court has established that the TBOR provides the exclusive means for obtaining a tax refund; that a party seeking a tax refund must strictly comply with the TBOR, see Ex parte Jefferson Smurfit Corp. (U.S.), 951 So. 2d 659, 665 (Ala. 2006), accord State Dep't of Revenue v. Decatur RSA LP, 247 So. 3d 378, 387 (Ala. Civ. App. 2017), and that "compliance with the procedures set forth in the TBOR is a jurisdictional matter." Wilbert of Birmingham, LLC v. Jefferson Cnty., 338 So. 3d 159, 162 (Ala. 2021). Hence, a circuit court does not acquire subject-matter jurisdiction over a claim for a sales-tax refund unless and until the plaintiff has strictly complied with the refund procedures established in § 40-2A-7(c) of the TBOR and appealed to the circuit court. In their motions to dismiss, the merchants argue that the circuit court lacks subject-matter jurisdiction over the case because Envirocare has circumvented the TBOR refund process. According to the merchants, 13 CL-2026-0772 because Envirocare has pleaded that it has not followed the sales-tax- refund procedures set out in the TBOR, Envirocare cannot maintain its class action before the circuit court. We agree. Because the TBOR governs all matters administered by the ADOR, see § 40-2A-2(2), and because § 40-23-4(a)(4), the statute pursuant to which Envirocare asserts that it was exempt from sales tax, is administered by the ADOR, see § 40-23-30, the provisions of the TBOR clearly govern Envirocare's right to a tax refund and the procedures for enforcing that right. Regardless of the form in which the complaint has been cast, see Ex parte Bender Shipbuilding & Repair Co., 879 So. 2d 577, 584 (Ala. 2003) ("We treat a pleading and any other filing according to its substance, rather than its form or its style."), Envirocare essentially seeks a sales-tax refund, a reimbursement of the money it and other similarly situated class members paid to the merchants as sales taxes on purchases of insecticides and fungicides that are allegedly exempt from such taxes.5 Thus, its claims are subject to the TBOR. 5We note that Ala. Code 1975, § 40-23-26(b), provides, in pertinent part: "[I]t shall … be unlawful to refund or offer to refund all or any part of the [sales tax] collected …." 14 CL-2026-0772 It is equally clear from the face of Envirocare's complaint that it has not yet complied with the procedures outlined in § 40-2A-7(c)(1). In paragraphs 23 and 33 of the complaint, Envirocare alleged that it had filed or would be filing a petition with the ADOR for the same sales-tax refund, plainly indicating that it had not yet fully complied with the TBOR by receiving a ruling on its petition and filing an appeal to the circuit court from the denial of that petition. Under Patterson and its progeny, the failure of Envirocare to comply with the TBOR deprives the circuit court of subject-matter jurisdiction over the case. In its response to the motions to dismiss, Envirocare conceded that it would have to follow the TBOR to obtain a tax refund from the ADOR, but, it asserted, it should not have to follow the TBOR to obtain a civil remedy against the merchants. Admittedly, none of the cases construing the TBOR have addressed the jurisdiction of a circuit court over a complaint filed by a consumer directly against a seller who allegedly improperly collected sales taxes from the consumer and allegedly improperly failed to remit those taxes to the ADOR. However, we cannot discern any valid reason for failing to follow the law as enunciated by the supreme court based on that distinction. In Wilbert, supra, the supreme 15 CL-2026-0772 court recognized that the same jurisdictional principle applies to both taxpayers and taxing authorities. 338 So. 3d at 162 n.4 ("Of course, if a taxpayer must strictly comply with the TBOR to imbue the circuit court with jurisdiction over the appeal of a final assessment, clearly, then, a taxing authority must also strictly comply with the TBOR to imbue the circuit court with jurisdiction over an action to collect on a final assessment."). The TBOR provides the remedy to a consumer seeking a refund of sales taxes improperly collected by a seller just as it provides a remedy to a taxing authority to collect sales taxes properly due from a seller; thus, Envirocare could not maintain its class action to recover a refund of the sales taxes it is claiming without first complying with the TBOR. Finally, Envirocare contends that the TBOR provides it an inadequate remedy, but, even assuming that is true, that does not affect the jurisdictional analysis. Envirocare must follow the TBOR as the exclusive means to obtain the sales-tax refund it is seeking, and, unless 16 CL-2026-0772 and until it does, the circuit court lacks subject-matter jurisdiction over the controversy.6 Conclusion We conclude that the merchants have shown a clear legal right to relief and that all the other elements necessary for mandamus relief have been proven. The circuit court lacks subject-matter jurisdiction, so it must dismiss the case. We, therefore, grant the petition for the writ of mandamus, and we issue a writ directing the circuit court to vacate its order denying the merchants' motions to dismiss and to enter a new order dismissing the case because of a lack of subject-matter jurisdiction. PETITION GRANTED; WRIT ISSUED. Edwards, Hanson, Fridy, and Bowden, JJ., concur. 6For that reason, we do not address whether Envirocare can maintain any civil cause of action against the merchants should the ADOR deny its refund petition in whole or in part, which is a question not ripe for our review. 17