from Montgomery Circuit Court (CV-14-900735 and CV-14-900737)
these consolidated appeals, the Alabama Department of Revenue
("ADOR") seeks appellate review of an order entered
by the Montgomery Circuit Court, after an ore tenus
proceeding, in two judicial-review proceedings initiated by
WestPoint Home, LLC ("WPH"), the successor to two
former foreign corporations, WestPoint Stevens, Inc.
("WPS"), and WestPoint Stevens Stores, Inc.
("WPSS"), that had sought refunds from ADOR of
certain franchise-tax payments made before the United States
Supreme Court held that tax unconstitutional in South
Central Bell Telephone Co. v. Alabama, 526 U.S. 160
(1999), rev'g South Central Bell Telephone Co. v.
State, 711 So.2d 1005 (Ala. 1998). We dismiss each
appeal as not having been taken from a final judgment.
record reveals that both WPS and WPSS initially filed
requests with ADOR for refunds of franchise taxes paid by
those entities during the 1996-1998 tax years in November
1998, within two months of the United States Supreme
Court's grant of certiorari review in South Central
Bell in September 1998 (see 524 U.S. 981). In
May 1999, WPS and WPSS filed refund requests as to their 1999
franchise-tax payments; WPSS also filed a refund request as
to its 1995 franchise-tax payment, and WPS filed a request
seeking refunds of its 1993-1995 franchise-tax payments. All
of those petitions were deemed denied as a matter of law six
months following their having been filed, see Ala.
Code 1975, § 40-2A-7(c)(3), and WPS and WPSS thereafter
timely filed notices of appeal to the Administrative Law
Division of ADOR in August 2000. See generally Rheem Mfg.
Co. v. Alabama Dep't of Revenue, 33 So.3d 1, 2 nn.
1-2 (Ala. Civ. App. 2009) (discussing "deemed
denial" and former mechanisms and timeframes for seeking
judicial review in the ADOR Administrative Law Division of
ADOR denials of tax-refund petitions). The administrative
appeals were held in abeyance pending proceedings on remand
in South Central Bell and were also delayed by the
filing of petitions on behalf of both WPS and WPSS for
protection under the United States Bankruptcy Code. WPH
purchased the assets of both WPS and WPSS in connection with
those bankruptcy matters and filed motions in the
administrative appeals to be substituted as the real party in
interest. During the administrative proceedings, ADOR opposed
the substitution of WPH as a party and averred that the
refund claims were barred by judicial estoppel because, ADOR
said, they had not been disclosed to the court presiding over
the bankruptcy proceedings involving WPS and WPSS. The
Administrative Law Division of ADOR entered a final, one-page
order on April 10, 2014, denying the motion to substitute and
dismissing the refund appeals with prejudice by reference to
the arguments advanced by ADOR in its administrative filings.
to former Ala. Code 1975, § 40-2A-9(g)(1)a., WPS and
WPSS filed separate notices of appeal on April 28, 2014, to
the Montgomery Circuit Court seeking de novo review of the
decision of the ADOR Administrative Law Division and again
sought substitution of WPH as the real party in interest in
each matter. ADOR moved to dismiss the appeals because, it
said, WPS and WPSS had not timely served the Commissioner of
ADOR and the Attorney General. After holding a de novo trial,
the circuit judge to whom the cases were initially assigned
retired from judicial service, and that judge's
successor, after a review of the administrative record and
the evidence adduced by the parties in the circuit court,
issued a three-page order, which was entered in each case, in
February 2017 determining that (a) ADOR was required to
provide an adequate remedy at law with respect to the
unconstitutional foreign franchise-tax collections condemned
in South Central Bell, (b) the refund petitions were
not precluded by applicable law (including judicial
estoppel), (c) WPH, as successor to WPS and WPSS, was
"entitled to recover an amount claimed in [the] refund
petitions along with statutory interest, " and (d) the
amount due to be awarded to WPH was due to be reduced by $100
per year (i.e., the amount that the circuit court
determined that WPS and WPSS would have paid as franchise
taxes each year in question had they been domestic
corporations). Notably, there is no indication in the order
as to precisely what interest, prejudgment or postjudgment,
WPH would be entitled to recover on behalf of its
appealed from the trial court's order entered in both
appeals. It contends that the trial court erred in granting
each of the refund petitions at issue because, it says, the
provisions of Rule 4(c)(7), Ala. R. Civ. P., pertaining to
service of process upon state agencies was not followed, the
refund petitions are barred by the doctrine of judicial
estoppel, some of the refund petitions were not timely filed,
and WPH failed to prove its damages. It has not contended
that WPH is not currently the real party in interest in the
two tax-refund cases.
It is a
settled jurisprudential principle that an appellate court
must initially consider whether it has jurisdiction to hear
and decide an appeal: "[J]urisdictional matters are of
such magnitude that we take notice of them at any time and do
so even ex mero motu." Nunn v. Baker,
518 So.2d 711, 712 (Ala. 1987). Under Ala. Code 1975, §
12-22-2, an appeal will lie to the appropriate appellate
court, within the time and in the manner prescribed by the
Alabama Rules of Appellate Procedure, from any final
judgment of a circuit court. Although ADOR classifies
the trial court's order entered in the appeals taken by
WPS and WPSS by and through WPH as such a final judgment, we
must conclude that that characterization is not accurate.
Young v. Sandlin, 703 So.2d 1005 (Ala. Civ. App.
1997), this court considered whether an order entered by a
trial court granting a plaintiff's summary-judgment
motion was a final judgment. The complaint filed in
Young had asserted that credit-life-insurance
proceeds had been improperly paid to discharge a debt
incurred by someone other than the named insured and had
sought compensatory damages of $25, 232.09, interest,
punitive damages, and costs; the trial court's
summary-judgment order, however, simply stated that the
recipient was "'obligated to repay the life
insurance proceeds to'" the estate of the deceased
named insured without determining the issue of damages or
other relief. 703 So.2d at 1007. Although the trial court in
Young sought to direct the entry of a final judgment
as to its summary-judgment order pursuant to Rule 54(b), Ala.
R. Civ. P., this court rejected the premise that a final
judgment had thereby been entered:
"However, the trial court's summary judgment for the
Estate awards no relief. First, the summary judgment does not
assess a specific amount of compensatory damages, but states
only that Young 'is legally obligated to repay the life
insurance proceeds' to the Estate. This amount is not
determinable from the face of the judgment, but only from
extraneous facts. The Alabama Supreme Court has held
that '[a] judgment for damages to be final must ... be
for a sum certain determinable without resort to extraneous
facts.' Moody v. State ex rel. Payne, 351 So.2d
547, 551 (Ala. 1977) (quoting Jewell v. Jackson &
Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala. 1976)).
"Moreover, the judgment does not award punitive damages,
interest, or costs to which the Estate may be entitled ....
Here, the judgment failed to address numerous issues
concerning the compensatory and punitive damages and other
legal and equitable relief potentially inuring to the benefit
of the Estate, the prevailing party in this case.
"In Ford Motor Co. v. Tunnell, 641 So.2d 1238
(Ala. 1994), the Alabama Supreme Court stated the following
pertinent principles governing the finality of judgments
under § 12-22-2:
"'This Court has defined a final judgment as "a
terminative decision by a court of competent jurisdiction
which demonstrates there has been a complete adjudication of
all matters in controversy between the litigants within the
cognizance of that Court. That is, it must be conclusive
and certain in itself." Jewell v. Jackson &
Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala. 1976).
Further, we had stated: "All matters should be decided;
damages should be assessed with specificity leaving the
parties with nothing to determine on their own."
Jewell, 331 So.2d at 625.'
"641 So.2d at 1240. The summary judgment in this case
does not assess the Estate's damages at all, much less
with the conclusiveness and specificity required by
Tunnell. 'That a judgment is not final when the
amount of damages has not been fixed by it is
unquestionable.' 'Automatic' Sprinkler Corp.
of Am. v. B.F. Goodrich Co., 351 So.2d 555, 557 (Ala.
Young, 703 So.2d at 1007-08 (emphasis added and
omitted). Accord Bacadam Outdoor Advertising, Inc. v.
Kennard, 721 So.2d 226 (Ala. Civ. App. 1998) (dismissing
appeal in detinue action when damages due prevailing party
had not been specifically determined); Ex parte Bessemer
Bd. of Educ., 68 So.3d 782, 787-88 (Ala. 2011)
(determining that trial court's order directing certain
defendants to pay "'the correct salary ...
calculated in the manner ...