Scott & Scott, Inc. v. CITY OF MOUNT. BROOK

CourtSupreme Court of Alabama
Writing for the CourtHARWOOD, Justice.
Citation844 So.2d 577
Decision Date06 September 2002
PartiesSCOTT & SCOTT, INC., et al. v. CITY OF MOUNTAIN BROOK.

844 So.2d 577

SCOTT & SCOTT, INC., et al.
v.
CITY OF MOUNTAIN BROOK

1010524.

Supreme Court of Alabama.

September 6, 2002.


844 So.2d 579
Matthew C. McDonald and Wendi M. Brown of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for appellants

Matthew H. Lembke and Brian R. Hinton of Bradley Arant Rose & White, L.L.P., Birmingham, for appellees.

844 So.2d 580
HARWOOD, Justice

On December 16, 1999, the City of Mountain Brook sued Scott & Scott, Inc., Walter F. Scott, Jr., Walter F. Scott III, Barbara Ann Scott,1 Sara Heard Allred, Virgil Heard, Crestline Center Partnership,2 1st Allred Income Trust,3 and Jefferson Properties, Ltd.,4 seeking to collect allegedly owed and unpaid business license taxes. We refer to the defendants collectively as "the Scotts." Their brief on appeal, filed formally on behalf of all of the defendants, states: "The individual Scotts are related by blood or marriage and hold the properties in their individual capacities or through corporations or partnerships which are also defendants in this action." Moreover, the Scotts chose to defend this suit collectively, and they do not assert in their brief to this Court any individual or respective defenses as to the City's claims.

In its action, the City alleged that the Scotts were in the business of leasing property within the City and that they had failed to pay the business license taxes required for the operation of such a business. The Scotts answered the City's complaint by asserting that their ownership of leased real property within the City was not a "business" within the ambit of the City's ordinances imposing the business license tax. After extensive discovery, the City filed a motion for a summary judgment on June 23, 2000, and the Scotts filed a motion for a summary judgment on August 15, 2000. The trial court held a hearing on the motions for a summary judgment on October 13, 2000. The circuit judge who conducted the hearing retired before an order was entered, and the Scotts filed a motion, requesting his successor to take the motions for a summary judgment under submission or to reset the motions for another hearing.

On July 6, 2001, the trial court entered a summary judgment in favor of the City. The trial court's order set out the facts and the controlling ordinances, as well as the history of those ordinances. The July 6, 2001, order of the trial court stated, in pertinent part:

"Involved in this action is the issue of whether or not the Scotts owe to the City of Mountain Brook money due for business licenses levied against Defendants for the calendar years 1994-1999 under the various city ordinances governing the imposition of said licenses during that period. There is no genuine dispute of the material facts in this case with regard to whether or not the Scotts own property within the city limits of the City of Mountain Brook and that they realize rental income from the properties so owned.
"According to the affidavits submitted by Defendants, this case involves four (4) parcels of real estate, all of which generate rental income, described as follows:
"1. Oak Street Garden Shop— Owned individually by Defendant Walter F. Scott, Jr. and Defendant Walter F. Scott, III, leased directly by the Scotts.
"2. Crestline Corners—Until 1998, owned by Defendants Sara Heard Allred, Virgil Heard and Barbara Ann Scott. Since 1998, owned by Defendant Jefferson Properties, and since 1994 managed by Engle Realty.
"3. Country Club Park—Owned since 1994 by Scott & Scott, Inc., and leased by [Southpace Management], Inc.
844 So.2d 581
"4. The Cahaba Road Property— Owned in 1994 by Barbara Ann Scott and Sarah Heard Allred. Defendant Allred transferred her interest to Defendant 1st Allred Income Trust in 1995; Defendant Scott transferred her interest to Defendant Jefferson Properties in 1998; currently the property is owned jointly by Defendant 1st Allred Income Trust and Defendant Jefferson Properties and is managed by Eason, Graham and Sandner.
"....
"The relevant portions of the ordinances for which [the Scotts seek] this Court's review are as follows:
"Effective from January 1, 1988 to December 31, 1995
"Ordinance No. 959 (Repealing Ordinance No. 869 and To Adopt a New Business License Code)

"`Section 2.7.a. Each person engaged as an agent for the business of buying, selling, renting or exchanging real estate... the license shall be $200.00 plus an amount equal to 1/2 of 1% of the gross receipts for such business in excess of $50,000.00 during the next preceding year.

"`Section 2.7.d Each person, firm or corporation engaged in the business of renting or leasing real property which is located within the City of Mountain Brook and which is owned by such person, firm or corporation... shall pay a license fee ....

"`Section 26. Any person, firm or corporation violating any provision of this ordinance shall, upon conviction, be fined not more than one hundred dollars ($100.00) and may also as an additional punishment be sentenced to jail or to hard labor for said City for not more than six months.' (Emphasis added [in trial court's order].)

"2. Effective from January 1, 1995 to February 13, 1995
"Ordinance No. 1178 (repealing Ordinance No. 959 inter alia)

"Section 3.6.D.

"`Each person who has an office or other place of business in the City and who is engaged in the business of leasing to another person real property which is located within or without the City and which is owned by such person, including, but not limited to houses, apartments, commercial buildings, industrial buildings, storage buildings and office buildings shall pay a license tax as provided hereafter....

"`Each person who has an office or other place of business in the City and who is engaged in the business of managing or serving as the leasing agent for real property ... owned by another person, regardless of whether such real property is located within or without the City, shall pay a license tax as provided hereafter.'

"Section 9(b) Definition of `Gross receipts.'

"`If the amount of the license tax is based upon gross receipts, the term, "gross receipts," unless the contrary clearly appears, shall mean the entire receipts of the business, occupation, profession or trade engaged in, ... and there shall not be deducted from such receipts any amounts not herein specifically provided for.'

"Section 24. Punishment for Violation of Ordinance.

"`Any person violating any provision of this ordinance shall, upon conviction, be fined not more than $500.00 and may also, as additional punishment, be sentenced to jail or to hard labor for said City for not more than

844 So.2d 582
180 days.' (Emphasis added [to Section 3.6.D. in trial court's order].)
"3. Effective from February 13, 1995 to December 15, 1997
"Ordinance No. 1188 (Amending Ordinance No. 1178, Section 3.6.D., inter alia)

"`D. Leasing. Each person who is engaged in the business of leasing to another party real property which is located in the City and which is owned by such person ... shall pay a license tax as provided hereafter....

"`Each person who is engaged in the business of managing or serving as the leasing agent for real property located in the city ... owned by another person shall pay a license tax as provided hereafter.' (Emphasis added [in trial court's order].)

"4. Effective from December 15, 1997 to September 28, 1998

"Ordinance No. 1293 (Further amending Ordinance No. 1178, inter alia)

"`2. Section 3.6.D. Leasing of Real Property other than Dwellings.

"`a. Each person who is engaged in leasing to another party real property (other than dwellings) which is located within the City, and is owned by such person, ... shall pay a license tax in the amount equal to one-half of one percent (1/2%) of the gross receipts from the leasing of such real property during the preceding calendar year....

"`c. Each person who is engaged in the business of managing, leasing, or serving as the leasing agent for real property (other than dwellings) which is located within the City and is owned by another person ... shall pay a license tax ... (emphasis added [in trial court's order]).'

"5. Effective from September 28, 1998 to December 14, 1998
"Ordinance No. 1330 (Amendment and restatement of Ordinance No. 1178, inter alia)

"`Section 3.6.F(1) Leasing of Real Property Other Than Dwellings.

"`Each person who is engaged in leasing to another party real property (other than dwellings) which is located within the City and is owned by such person ... shall pay a license tax in the amount equal to 1/2 of 1% of the gross receipts from the leasing of such real property....

"`Section 3.6.F(2) Each person who is engaged in the business of managing, leasing, or serving as the leasing agent for, real property (other than dwellings) which is located within the City and is owned by another person,... shall pay a license tax in the amount equal to 1/2 of 1% of the gross commissions or other payments received....' (Emphasis added [in trial court's order].)

"6. Effective from December 14, 1998 through 1999
"Ordinance No. 1341 (Amendment and restatement of Ordinance No. 1330)

"`Section 3.6.F(1) Leasing of Real Property Other Than Dwellings.

"`... As used in this subsection, the term "gross receipts" shall include total receipts ... less the commissions or fees paid to the designated rental property manager or leasing agent.

"`(2) Each person who is engaged in the business of managing, leasing, or serving as the leasing agent for, real property (other than dwellings) which is located within the City and is owned by another person ... shall pay a license tax in the amount equal to 1/4 of 1% (0.25%) of gross commissions....

844 So.2d 583
As used in this subsection, the term "gross commission ..." shall include total receipts ... less amounts distributed either directly or indirectly to the property owner

"`Section 24. Punishment for Violation of Ordinance.

"`Any person violating any provision of this...

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20 practice notes
  • Powell v. State , CR–09–1192.
    • United States
    • Alabama Court of Criminal Appeals
    • April 29, 2011
    ...will not render a statute or ordinance too vague or uncertain to be enforced.” ’ Scott & Scott, Inc. v. City of Mountain Brook, 844 So.2d 577, 589 (Ala.2002), quoting City of Birmingham v. Samford, 274 Ala. 367, 372, 149 So.2d 271, 275 (1963). The judicial power to declare a statute void fo......
  • Hicks v. State (Ex parte Hicks), 1110620.
    • United States
    • Supreme Court of Alabama
    • April 18, 2014
    ...will not render a statute or ordinance too vague or uncertain to be enforced.” ’ Scott & Scott, Inc. v. City of Mountain Brook, 844 So.2d 577, 589 (Ala.2002), quoting City of Birmingham v. Samford, 274 Ala. 367, 372, 149 So.2d 271, 275 (1963). The judicial power to declare a statute void fo......
  • State v. K.E.L., CR-18-1177
    • United States
    • Alabama Court of Criminal Appeals
    • July 10, 2020
    ...will not render a statute or ordinance too vague or uncertain to be enforced." ’ Scott & Scott, Inc. v. City of Mountain Brook, 844 So. 2d 577, 589 (Ala. 2002), quoting City of Birmingham v. Samford, 274 Ala. 367, 372, 149 So. 2d 271, 275 (1963). The judicial power to declare a statute void......
  • State v. B.T.D., CR-17-1171
    • United States
    • Alabama Court of Criminal Appeals
    • May 24, 2019
    ...has been applied in due process cases not involving First Amendment freedoms.’ " Scott & Scott, Inc. v. City of Mountain Brook, 844 So.2d 577, 594 (Ala. 2002) (quoting Friday v. Ethanol Corp., 539 So.2d 208, 215 (Ala. 1988) (emphasis added)).9 Although B.T.D. did not challenge the constitut......
  • Request a trial to view additional results
20 cases
  • Powell v. State , CR–09–1192.
    • United States
    • Alabama Court of Criminal Appeals
    • April 29, 2011
    ...will not render a statute or ordinance too vague or uncertain to be enforced.” ’ Scott & Scott, Inc. v. City of Mountain Brook, 844 So.2d 577, 589 (Ala.2002), quoting City of Birmingham v. Samford, 274 Ala. 367, 372, 149 So.2d 271, 275 (1963). The judicial power to declare a statute void fo......
  • Hicks v. State (Ex parte Hicks), 1110620.
    • United States
    • Supreme Court of Alabama
    • April 18, 2014
    ...will not render a statute or ordinance too vague or uncertain to be enforced.” ’ Scott & Scott, Inc. v. City of Mountain Brook, 844 So.2d 577, 589 (Ala.2002), quoting City of Birmingham v. Samford, 274 Ala. 367, 372, 149 So.2d 271, 275 (1963). The judicial power to declare a statute void fo......
  • State v. K.E.L., CR-18-1177
    • United States
    • Alabama Court of Criminal Appeals
    • July 10, 2020
    ...will not render a statute or ordinance too vague or uncertain to be enforced." ’ Scott & Scott, Inc. v. City of Mountain Brook, 844 So. 2d 577, 589 (Ala. 2002), quoting City of Birmingham v. Samford, 274 Ala. 367, 372, 149 So. 2d 271, 275 (1963). The judicial power to declare a statute void......
  • State v. B.T.D., CR-17-1171
    • United States
    • Alabama Court of Criminal Appeals
    • May 24, 2019
    ...has been applied in due process cases not involving First Amendment freedoms.’ " Scott & Scott, Inc. v. City of Mountain Brook, 844 So.2d 577, 594 (Ala. 2002) (quoting Friday v. Ethanol Corp., 539 So.2d 208, 215 (Ala. 1988) (emphasis added)).9 Although B.T.D. did not challenge the constitut......
  • Request a trial to view additional results

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