P.J. Lumber Company, Inc.
City of Prichard
from Mobile Circuit Court (CV-16-116)
THOMPSON, Presiding Judge.
Lumber Company, Inc. ("P.J. Lumber"), appeals from
a summary judgment that the Mobile Circuit Court entered
upholding a decision of the City of Prichard ("the
city") denying P.J. Lumber's request for a partial
refund of the amount it had paid for business-license taxes.
P.J. Lumber claimed that the city had improperly included
P.J. Lumber's gross revenue from international sales when
it calculated the amount of the business-license taxes. P.J.
Lumber argued that the use of revenue from exported goods in
calculating the taxes ran afoul of the Import-Export Clause
of the United States Constitution.
facts in this case are not disputed. The record demonstrates
that P.J. Lumber, whose principal place of business is within
the geographical limits of the city, sells lumber both within
the United States and internationally. From 2009 through
2014, P.J. Lumber paid the city business-license taxes, the
amount of which was based on P.J. Lumber's gross revenue,
including domestic and foreign sales. On October 21, 2015,
P.J. Lumber submitted to the city a request for a refund of
the business-license taxes it had paid that had been based on
foreign sales. P.J. Lumber calculated that it was owed a
refund of $21, 855.02 for the years 2009 through 2014. The
city did not respond to P.J. Lumber's request. Therefore,
the request was deemed denied six months later, on April 21,
2016. § 11-51-191(g)(3), Ala. Code 1975.
Lumber appealed the city's denial of the refund to the
circuit court on May 11, 2016. When the city had not timely
responded to P.J. Lumber's appeal, P.J. Lumber filed a
motion for a default judgment on July 6, 2016. On July 14,
2016, the circuit court entered a default judgment against
the city. On July 28, 2016, the city filed a motion to vacate
the default judgment, asserting that the "matter was
inadvertently not forwarded from the [city] Clerk's
office to the municipal insurance carrier." The circuit
court granted the city's motion and vacated the default
judgment on August 10, 2016. P.J. Lumber did not file a
motion in the circuit court to challenge the decision to
vacate the default judgment, and the litigation proceeded.
Lumber and the city filed competing motions for a summary
judgment. On January 16, 2017, the circuit court entered a
partial summary judgment in favor of the city finding that
P.J. Lumber's request for a refund for the years 2009
through 2012 was time-barred. The circuit court directed the
city to brief the issue of whether the amount of
business-license taxes assessed against P.J. Lumber could be
based at least in part on revenue generated from P.J.
Lumber's foreign sales. On May 3, 2017, after considering
the arguments of the parties, the circuit court entered a
judgment determining that the business-license taxes that the
city had levied on P.J. Lumber did not violate the United
States Constitution and that P.J. Lumber was not owed a
refund. P.J. Lumber timely appealed to the Alabama Supreme
Court, which transferred the appeal to this court because
original appellate jurisdiction lies with this court. §
12-3-10, Ala. Code 1975.
Lumber first contends that the circuit court abused its
discretion by setting aside the default judgment. The record
shows that this issue was never raised before the circuit
court and is therefore not preserved for this court's
review. "'[I]t is a well-settled rule that an
appellate court's review is limited to only those issues
that were raised before the trial court. Issues raised for
the first time on appeal cannot be considered.'"
Neal v. Neal, 856 So.2d 766, 778 (Ala. 2002)
(quoting Beavers v. County of Walker, 645 So.2d
1365, 1372 (Ala. 1994)).
reply brief, P.J. Lumber asserts that it first addressed
"the issue" when it filed its motion requesting the
default judgment. It then states, "[t]here is no implied
waiver of the relief that P.J. Lumber already sought (and
received)." However, filing a motion to request a
default judgment and challenging the circuit court's
decision to set aside a default judgment are two separate
things occurring at separate steps of the litigation. In
Head v. Triangle Construction Co., 274 Ala.
519, 522, 150 So.2d 389, 392 (1963), our supreme court
explained the reason for requiring an objection to be raised
in the trial court to preserve an issue for appellate review:
"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.
Hamilton Motor Co. v. Cooner, [254 Ala. 422');">254 Ala. 422, 47
So.2d 270 (1950)]; Southern Cement Co. v. Patterson,
271 Ala. 128, 122 So.2d 386');">122 So.2d 386 [(1960)]; McElhaney v.
Singleton, 270 Ala. 162, 117 So.2d 375');">117 So.2d 375 [(1960)];
State v. Moore, 269 Ala. 20, 110 So.2d 635');">110 So.2d 635 [(1959)].
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. Southern Railway Co. v. McCamy, 270 Ala. 510,
120 So.2d 695');">120 So.2d 695 [(1960)]."
axiomatic that "[t]his 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); Shiver v. Butler Cty. Bd. of
Educ., 797 So.2d 1086, 1089 (Ala. Civ. App.
2000)(holding that an appellate court will not consider an
issue on which the trial court was not given the opportunity
to rule). Because "[i]t is well settled that an
appellate court may not hold a trial court in error in regard
to theories or issues not presented to that court, "
Allsopp v. Bolding, 86 So.3d 952, 962 (Ala. 2011),
we will not reverse the judgment of the circuit court on this
to the merits of the other arguments made in P.J.
Lumber's brief on appeal, we note that our standard when
reviewing a summary judgment is as follows:
"We review a summary judgment de novo; we apply the same
standard as was applied in the trial court. A motion for a
summary judgment is to be granted when no genuine issue of
material fact exists and the moving party is entitled to a
judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A
party moving for a summary judgment must make a prima facie
showing 'that there is no genuine issue as to any
material fact and that [it] is entitled to a judgment as a
matter of law.' Rule 56(c)(3); see Lee v. City of
Gadsden, 592 So.2d 1036, 1038 (Ala. 1992). If the movant
meets that burden, 'the burden then shifts to the
nonmovant to rebut the movant's prima facie showing by
"substantial evidence."' Lee, 592
So.2d at 1038 (footnote omitted). '[S]ubstantial evidence
is evidence of such weight and quality that fair-minded
persons in the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be proved.'
West v. Founders Life Assurance Co. of Florida, 547
So.2d 870, 871 (Ala. 1989); see Ala. Code 1975,
§ 12-21-12(d). Furthermore, when reviewing a summary
judgment, the appellate court must view all the evidence in a
light most favorable to the nonmovant and must entertain all
reasonable inferences from the evidence that a jury would be
entitled to draw. See Nationwide Prop. & Cas. Co. v.
DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000);
and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487
Bailey v. Jacksonville Health & Rehab. Ctr.,
[Ms. 2160350, July 21, 2017] ___ So.3d ___, ___ (Ala. Civ.
App. 2017). In this matter, the evidence was undisputed.
Therefore, we review this matter to determine whether the
city was entitled to a judgment as a matter of law.
Lumber does not challenge the circuit court's ruling that
its request for a refund of a portion of the business-license
taxes it paid for 2009 through 2012 was barred by the
applicable statute of limitations. However, P.J. Lumber says,
it still believes it is entitled to a refund in the amount of
$5, 385.40 for business-license taxes it paid in 2013 and
2014. In requesting the refund from the city, P.J. Lumber
asserted that the city had improperly included gross revenues
from its export sales to calculate the ...