Appellate Law

Appellate Court Will Not issue Advisory Opinion

An appellate court may not issue an advisory opinion.  A decision may constitute an advisory opinion when the party whose conduct is at issue is not before the court so that the court's decision will have no effect. BWT v. Haynes, No. 2071235 (Ct. Civ. App. April 17, 2009).  In BWT, the plaintiff sought a declaratory judgment concerning an attorney's fee. Rule 1.5 of the Alabama Rules of Professional Conduct governed the issue, and the Alabama State Bar, that has jurisdiction over conduct issues, was not a defendant in the declaratory judgment action. The Court of Civil Appeals dismissed the appeal from a judgment concerning the fee.

 '[A] declaratory judgment is binding only on the parties to the action in which the judgment was sought. The State Bar was not made a party to this action. As a result, the trial court's determination as to whether the fee agreement violates Rule 1.5 is not binding on the State Bar. Thus, the State Bar, which is charged with enforcing Rule 1.5, is free to interpret and enforce Rule 1.5 with regard to the fee agreement at issue in this case without regard to the trial court's judgment, and without regard to any disposition by this court of the appeal from that judgment. The trial court's judgment, and any disposition by this court that affirms or reverses that judgment, is, as a result, merely advisory. Because this case presents a dispute that is not justiciable and for which any judgment constitutes merely an advisory opinion, the trial court never obtained subject-matter jurisdiction over the action; its judgment is therefore void. See Stamps, 642 So. 2d at 945. Because a void judgment will not support an appeal, we are left with no choice but to dismiss the appeal and to instruct the trial court to dismiss the action.'  Id.

Full post as published by Alabama Appellate Watch on April 27, 2009 (boomark / email).