Appellate Law

Dismissal "Without Prejudice" Can Support Appeal If Judgment Conclusively Determines Issue Before Court

In J.J. v. J.B., [Ms. 208411] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals refused to dismiss an appeal even though the appeal was from an order dismissing the underlying dependency case "without prejudice."   Although the Alabama Supreme Court has held that a dismissal "without prejudice" will not support an appeal if the trial court did not address the merits of the case in its order, see  Palugi v. Dow, 659 So. 2d 112 (Ala. 1995), that rule does not apply if the order actually decides the issue before the court.  Here, the trial court dismissed the underlying action without prejudice because the trial court found that the case was moot. The finding of mootness conclusively decided the issue before the trial court and, therefore, the order would support an appeal.  The Court of Civil Appeals ultimately reversed he dismissal.

Full post as published by Alabama Appellate Watch on July 31, 2009 (boomark / email).