Appellate Law

Alabama Court of Civil Appeals Finds Waiver of Appellate Issues in Two Appeals

Two cases released last week by the Alabama Court of Civil Appeals, J.K. v. N.J. and Jefferson Co. Department of Human Resources, No. 2080199, and Flowers v. Dean, No. 2070344 are illustrative as to the specificity with which an argument must be pressed in the trial court in order to preserve that issue for appellate review. 

In J.K., the father was a convicted sex offender who was ordered out of the home of his children by the juvenile court.  In closing argument, the father's attorney stated generally that Ala. Code 15-20-26(c)(4), which prohibits adult criminal sex offenders from maintaining a residence where a minor child also resides, was unconstitutional.  The father did not present specific arguments as to why he believed the statute was unconstitutional and the juvenile court produced no ruling on that issue.  Therefore, the general rule that "appellate courts cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration" precluded the court's review of the father's constitutional argument. 

Waiver of a slightly different sort was seen in Flowers.  There, the plaintiffs prevailed in the trial court but filed an appeal attempting to challenge the adequacy of the damages awards.  (Note that as the parties who prevailed in the trial court, the plaintiffs could raise on appeal only issues pertaining to the adequacy of the damages awards.)  The court found, however, that the plaintiffs had failed to preserve the damages issue in a timely-filed motion for new trial.  The plaintiffs' new trial motion challenged only the sufficiency of the evidence supporting the jury's verdict , not the damages awarded.   The court pointed out that "[t]he questions to be raised in a motion for a new trial based on allegations that an award of damages is inadequate are 'whether the verdict is so opposed to the clear and convincing weight of the evidence as to clearly fail to do substantial justice, and [whether it fails] to give substantial damages for substantial injuries." As the plaintiffs' motion for a new trial failed to mention or reference the award of damages, the issue was not preserved for appellate review.

Full post as published by Alabama Appellate Watch on May 06, 2009 (boomark / email).