TOWN OF WESTOVER v. Bynum

MOORE, Judge,

concurring in the result.

I concur with the main opinion that the judgment should be reversed, but I do so for reasons different than those contained in the main opinion.

In its final judgment, the trial court concluded that the Town of Westover’s ordinance nos. 2005-10-64-061 and 2007-11-6-147 (“the ordinances”) applied to the 51 Country Store (“the Country Store”), a business that is owned by J & F Enterprises, LLC, and that is currently located in an unincorporated part of Shelby County but is within the overlapping police jurisdictions of the Town of Westover (“the Town”) and the City of Chelsea, the latter of which does not levy or collect sales taxes or business-license fees. J & F Enterprises and James Bynum, the sole member of J & F Enterprises (hereinafter referred to collectively as “J & F”), do not dispute that legal conclusion, which is now the law of the case. See Norandal U.S.A., Inc. v. Graben, 18 So.Sd 405, 410 (Ala.Civ. *844App.2009) (failure of appellee to file cross-appeal made adverse ruling of trial court law of the case). Hence, I find no need to address the correctness of that legal conclusion, other than to note that it seems consistent with our decision in Town of Kitten v. Clemmons, 963 So.2d 670 (Ala.Civ.App.2007) (construing Ala.Code 1975, § 11-51-91, as authorizing a municipality to levy and collect business-license fees from a business located in an overlapping police jurisdiction if the nearest municipality does not collect such taxes), and Ala. Code 1975, § 11-51-206 (authorizing a municipality to collect sales taxes from businesses located outside its corporate limits but within its police jurisdiction).

Despite its conclusion that the ordinances applied to the Country Store, the trial court determined that they could not be enforced against J & F as to any date before December 11, 2009, because J & F did not have actual or constructive notice of its duty to pay the fees or collect taxes before that date. On appeal, the Town primarily argues that J & F had constructive notice of the ordinances and that any alleged actual ignorance of the law does not excuse J & F’s failure to comply with the ordinances. The Town secondarily argues that no admissible evidence supports the trial court’s finding that J & F did not have actual notice of the ordinances.

As stated by the Town in its brief to this court, as a matter of law,

“the publication or posting of an ordinance as required by law serves as notice, and no further notice, including to those affected by the ordinance, is necessary. 5 MCQUILLIN MUN. CORP. § 16:75 (2010). Notice of such an ordinance is required to be taken by anyone upon whom it has a binding effect, analogous to the rule that everyone is presumed to know the law. Id. § 15:25. ‘All persons upon whom valid ordinances are binding are charged with constructive notice of those ordinances, and a defendant cannot show that he or she did not know of the existence of the ordinance.’ Id. § 27:65.”

Based on the foregoing principles, actual knowledge of an ordinance is immaterial if a citizen has constructive knowledge of the ordinance through its enactment, publication, and/or posting.

In this case, the trial court specifically found that J & F did not have constructive notice of the ordinances.2 Such a finding could only be based on evidence indicating that the ordinances had not been validly enacted, published, and/or posted. In that regard, under Alabama law, it is presumed that a municipality performed all acts necessary to validate an ordinance; however, that presumption may be rebutted by evidence to the contrary. Chadwick v. Town of Hammondville, 270 Ala. 618, 622, 120 So.2d 899, 902 (1960) (“It has been determined that when a city passes an ordinance, the presumption applies that the city did what was necessary to make that ordinance valid and when a city ordinance is not invalid on its face, the burden of alleging and proving facts to support the claims of invalidity, is on the party so asserting.”). J & F did not offer any evidence or enter into any stipulation disputing the validity of the ordinances or their publication or posting. In fact, the parties stipulated that the Town was rely*845ing on ordinance nos. 2005-10-04-0601 and 2007-11-6-147, which authorize the Town to collect sales taxes and business-license fees, respectively, from businesses located within the Town’s police jurisdiction, and the parties attached the ordinances to their joint stipulation for the trial court’s consideration.

The Town did not file a postjudgment motion with the trial court regarding the insufficiency of the evidence to support the trial court’s factual finding that J & F had not received constructive notice of the ordinances. Ordinarily, an appellate court cannot review the sufficiency of the evidence to support a judgment in the absence of an adverse ruling on a post-judgment motion directing the trial court to the issue; however, when a trial court makes specific findings of fact, an appellate court can review the sufficiency of the evidence to support those findings without the necessity of an adverse ruling on a postjudgment motion. Rule 52(b), Ala. R. Civ. P. (“When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment or a motion for a new trial.”).

“The trial court’s ruling on the sufficiency of the evidence is implicit in a decree in which the trial judge is the trier of the facts. Moreover, by making written findings of fact, the trial judge has had the additional opportunity to reconsider the evidence and discover and correct any error in judgment which he or she may have made upon initial review. Thus, when written findings of fact are made, they serve the same useful purpose as does an objection to the trial court’s findings, a motion to amend them, a motion for a new trial, and a motion to dismiss ... — to permit the trial judge an opportunity to carefully review the evidence and to perfect the issues for review on appeal.”

Ex parte Vaughn, 495 So.2d 83, 87 (Ala.1986). Because the trial court specifically found that J & F did not receive constructive notice of the ordinances, we may address the Town’s argument that no evidence supports that factual determination.

Upon due consideration, I conclude that, because J & F did not present any evidence to rebut the presumption that the ordinances were validly enacted, published, and posted, the trial court had no eviden-tiary basis for finding that J & F had not received constructive notice of the ordinances.

Because J & F had constructive notice of the ordinances, its lack of actual notice of the ordinances is immaterial to their enforcement. See Center Moriches Monument Co. v. Commissioner of Taxation, 211 A.D.2d 947, 621 N.Y.S.2d 720 (1995) (ignorance of sales tax no excuse); and Alford v. Butler, 211 Tenn. 663, 367 S.W.2d 281 (1963) (same). Therefore, I find no need to address that point, although I do agree with the main opinion that no admissible evidence supported a finding of lack of actual notice.

The trial court committed reversible error in finding that J & F lacked constructive notice of the ordinances before December 11, 2009. The judgment should be reversed and the cause remanded with instructions to vacate those portions of the judgment denying enforcement of the ordinances before December 11, 2009, and to enter a new judgment finding the ordinances to be enforceable against the Country Store from the date of their adoption and awarding the Town the taxes and busi*846ness-license fees due.3

. The trial court evidently concluded that constructive notice was an issue in the case and resolved that issue adversely to the Town. On appeal, the Town does not challenge the trial court's conclusion that constructive notice was an issue; it attacks only the sufficiency of the evidence to support the finding that J & F did not have constructive notice of the ordinances. Therefore, this court cannot decide that constructive notice was not raised as an issue in the trial court below, as the main opinion asserts. 68 So.3d at 843 n. 1.

. The Town adopted ordinance no. 2005-10-04-061 on October 4, 2005; it adopted ordinance no. 2007-11-6-147 on November 6, 2007. The Town audited the Country Store's receipts for the period December 1, 2005, through September 30, 2009. That audit found that J & F owed $35,514.61 in back sales taxes, along with interest of $3,735.37 and penalties of $7,107.20. The audit also found that J & F owed $450 in business-license fees, along with $89.96 in interest and $112.50 in penalties. The record is unclear whether the Town is attempting to recover business-license fees predating November 6, 2007; however, J & F has never argued that point, so the judgment should award the Town the full audited amount.