Appellate Law
Alabama Appellate Watch 
News, cases and developments in Alabama appellate practice.
Post Frequency: 1.5/day Last Entry: November 17, 2009 at 11:42:49 Recent Entries: 509
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Premature Notice of Appeal Held in Abeyance Until Ripe; Date of Order Is Date It Is Entered on SJIS
Posted on November 17, 2009Two common procedural issues - what happens when a notice of appeal is filed prematurely and what is the effective date of an order - were addressed in Landry v. Landry, [Ms. 2080171, 2080372] (Ala. Civ. App. Nov. 6, 2009).In Landry, the trial court disposed of an action involving a petition to modify child support on Sept...
Rule 60(b) Used to Review a Costs Award
Posted on November 17, 2009In Fenison v. Birmingham Spring Service, Inc., [Ms. 2080023, 2080036] (Ala. Civ. App. Nov. 6, 2009), the Court of Civil Appeals held that a costs award could be challenged in the trial court by way of a Rule 60(b) motion, but ultimately held that the trial court exceeded its discretion by granting relief...
Cases Released November 13, 2009
Posted on November 16, 2009From the Alabama Court of Civil Appeals: Y.N. v. Jefferson County Department of Human Resources Ex parte Hamilton; Petition for Writ of Mandamus (In re: Hamilton v. State Department of Postsecondary Education) Complete List of Cases from the Alabama Court of Civil Appeals From the Alabama Supreme Court: Smallwood, et al...
Consolidated Actions Maintain Separate Identities For Determining Finality of Judgment and Time to Appeal
Posted on November 16, 2009In RJG v. SSW, [Ms. 2080509] (Ala. Civ. App. Aug. 21, 2009), the Court of Civil Appeals dismissed a portion of a father's appeal in a parental rights action as untimely. On November 6, 2009, the Court of Civil Appeals issued a new opinion of rehearing again dismissing the appeal, explaining that the appeal was not made timely by the fact that the underlying case was part of an action that had been consolidated...
Order Which States Only That Marital Property Must Be Divided Equitably Is Not a Final Judgment For Purpose of Appeal
Posted on November 16, 2009The Court Civil Appeals dismissed the appeal in Sims v. Sims, [Ms. 2070697] (Ala. Civ. App. Nov. 6, 2009), for lack of jurisdiction because it was an appeal of a non-final judgment. The trial court's order stated that the marital property must be divided equitably, but did not actually divide the property...
Action to Enforce Divorce Judgment Required New Filing Fee to Vest Jurisdiction
Posted on November 10, 2009Six years after the parties were divorced, the wife filed a motion to amend a provision in the divorce judgment that awarded her a part of the husband's retirement benefits. The Court of Civil Appeals deemed this an independent action to enforce the divorce judgment, which should have been accompanied by the appropriate filing fee...
Adoption Without Father's Consent Was Void
Posted on November 10, 2009A stepfather adopted his wife's biological child. Because the child's father had not consented to the adoption, however, as is required by Alabama statute, the adoption judgment was void. The father's appeal from that judgment was accordingly dismissed...
Cases Released November 6, 2009
Posted on November 09, 2009From the Alabama Court of Civil Appeals: Fenison v. Birmingham Spring Service, Inc., et al. R.L.M.S. v. Etowah County Department of Human Resources R.J.G. v. S.S.W. Young v. Ledford Zegarelli v. Montevallo Planning and Zoning Commission Taylor v. Goodyear Tire & Rubber Company, Inc...
Cases Released October 30, 2009
Posted on October 30, 2009From the Alabama Court of Civil Appeals: A.S.T. v. Etowah County Department of Human Resources Progressive Specialty Insurance Company v. Kyle M.M. v. D.P. Marsh v. Smith Montgomery v. Montgomery Herring-Malbis I, LLC v. TEMCO, Inc. Dickson Campers, Inc...
Court of Civil Appeals States Standard Governing Review of Trial Court's Ruling on Motion to Vacate a Default Judgment
Posted on October 27, 2009In LVNV Funding, LLC v. Boyles, released last week, the Alabama Court of Civil Appeals reversed the trial court's judgment denying a motion to vacate a default judgment pursuant to Rule 60(b)(4). The case was handled by Lightfoot, Franklin & White's own Chips Pruet and Wes Gilchrist and provides a good recent statement of the standard of review governing a ruling on a motion to vacate a default judgment...
Alabama Supreme Court Dismisses Appeal for Lack of Subject Matter Jurisdiction Even Though Issue Was Not Raised in the Trial Court
Posted on October 27, 2009In Johnson v. Neal, released October 23, 2009, the Alabama Supreme Court dismissed an appeal from the Macon County Circuit Court for lack of subject matter jurisdiction even though neither of the parties had raised that issue in the trial court.Homer Osborne died on July 17, 1973...
Cases Released October 23, 2009
Posted on October 26, 2009From the Alabama Court of Civil Appeals: State Department of Human Resources, on behalf of J.A.S. Ford v. Stringfellow Memorial Hospital LVNV Funding, LLC v. Boyles Complete List of Cases from the Alabama Court of Civil Appeals From the Alabama Supreme Court: Jefferson County et al...
Court Raises Absence of Indispensible Party Ex Mero Moto
Posted on October 19, 2009An appellate court must raise the absence of an indispensable party ex more moto and must dismiss an action without prejudice if the plaintiff has not joined an indispensable party. The failure to join an indispensible party could produce inconsistent verdicts and "impact the rights, duties, and liabilities of the litigants, members of the public, and the county...
Unlike Jurisdiction, Party May Waive Argument Concerning Real Party in Interest
Posted on October 19, 2009When the Court notices a possible jurisdictional defect in a case, it is incumbent upon the Court to examine the issue, even though no party has raised it. The question of whether a case is being prosecuted by the real party in interest is not a jurisdictional question...
Issue, Though Preserved Below, Not Subject to Appellate Review When First Raised in Oral Argument
Posted on October 19, 2009Ordinarily, an appellate court will not consider an argument that a party presents to the court for the first time at oral argument, even though the party preserved the argument in the lower court. "Issues not clearly raised in the briefs are considered abandoned...
Cases Released October 16, 2009
Posted on October 16, 2009From the Alabama Court of Civil Appeals: Ex parte Darnall et al.; Petition for Writ of Mandamus (In re: Darnall et al. v. Hughes et al.) Steward Machine Company, Inc. v. Board of Trustees of the University of Alabama, for its division University of Alabama Hospital Wilson v...
"Ala. court rejects verditcs in drug price cases"
Posted on October 16, 2009The Alabama Supreme Court reversed $274 million in judgments entered in favor of the state against three pharmaceutical companies - AstraZeneca PLC, Novartis AG, and GlaxoSmithKline PLC - and directed that judgment be entered in the pharmaceutical companies' favor...
Cases Released October 9, 2009
Posted on October 09, 2009From the Alabama Court of Civil Appeals: University of South Alabama Hospitals v. Blackmon M.R.J. v. D.R.B. A.C. v. C.C. Downs v. Lyles H.J.T. v. State of Alabama ex rel. M.S.M. L.E.O. v. A.L. General Electric Company v. Baggett Bishop State Community College v...
Cases Released October 2, 2009
Posted on October 02, 2009From the Alabama Court of Civil Appeals: Alabama Department of Public Safety v. Prince Steam & Process Repairs v. Cayton Wood v. Wood Montgomery County Department of Human Resources v. W.J. Klinger v. Ros The Baldwin County Planning and Zoning Commission v...
Second Alabama Appellate Opinion Involving the Alabama Age Discrimination in Employment Act Released
Posted on September 30, 2009While Lambert v. Mazer Discount Home Centers, Inc. does not implicate any civil litigation appellate issues, it is worth noting as it presents only the second time that an Alabama appellate court has considered the merits of a claim brought under the AADEA...
Alabama Court of Civil Appeals Discusses Standard of Review Applicable to Order Dismissing Action for Failure to Comply with Discovery Rules
Posted on September 30, 2009In Myers v. Harris, released September 25, 2009 by the Alabama Court of Civil Appeals, the court discussed the standard of review applicable to an order dismissing an action due to the plaintiff's failure to comply with the rules governing discovery...
Compensatory Damages Award Cannot Be Remitted Unless the Plaintiff is Given the Option of a New Trial
Posted on September 30, 2009In Hilb, Rogal & Hamilton et al. v. Beiersdoerfer, No. 1071395, released by the Alabama Supreme Court on September 25, 2009, the court held that a compensatory damages award cannot be remitted unless the plaintiff is given the option of a new trial...
New Appellate Fees Go Into Effect October 1, 2009
Posted on September 25, 2009Effective October 1, 2009, the cost of appellate justice in Alabama is going up. The new fees will be: Appeal to Supreme Court or Court of Civil Appeals - $200 Rule 5 permission to appeal - $150 Petition for writ of certiorari - $150 Mandamus petition or other extraordunary writ - $150
"Citizens are entitled to information regarding the affairs of their government."
Posted on September 25, 2009In Allen v. Barksdale, [Ms. 1080242] (Ala. Sept. 18, 2009), the Alabama Supreme Court held that certain prison records, including incident reports, are subject to the Open Records Act and had to be disclosed to plaintiffs. The Department of Corrections argued that the records were part of the inmate's personal files and not subject to the Act...
Rule 60(b) Motion May Only Be Granted Where Movant Alleges and Proves a Ground Set Forth in the Rule
Posted on September 25, 2009In Jefferson County Board of Health v. Birmingham Hide & Tallow Company, Inc., [Ms. 1080847] (Ala. Sept. 11, 2009), the Supreme Court reversed the granting of a Rule 60(b) motion for relief from judgment. The motion in the trial court neither specified which subsection of the rule the motion was made, nor did it explain why relief was justified under the rule...
Cases Released September 25, 2009
Posted on September 25, 2009From the Alabama Court of Civil Appeals: Sutton v. King, Attorney General, et al. P.D.S. v. Marshall County Department of Human Resources Myers v. Harris Lanbert v. Mazer Discount Home Centers, Inc. Wilson v. C-Sharpe Company, LLC Romer v. Romer The Alabama Board of Examiners in Psychology v...
Trial Court Has Discretion to Dismiss Action During Trial Due to Party's Refusal to Follow Instructions
Posted on September 24, 2009In Ex parte Folmar Kenner, LLC [Ms. 1070824] (Sept. 18, 2009), the Alabama Supreme Court held that it was within the trial court's discretion to dismiss a parties counterclaims, with prejudice, during trial when a party did not follow the court's instructions to just answer the questions asked and to not elaborate on her answers...
Appeal Dismissed Because Judgment Entered in Will Contest Void
Posted on September 24, 2009The Supreme Court sue sponte dismissed the appeal in Jean v. Jean, [Ms. 1080989] (Ala. Sept. 19. 2009), because the underlying judgment was void. The underlying dispute was a will contest originally brought in probate court, which was transferred to the circuit court...
Grandparents Do Not Hvae Standing to Appeal the Termination of Parent's Rights
Posted on September 24, 2009The Court of Civil Appeals dismissed an appeal for lack of standing in G.P. v. Houston County D.H.R., [Ms. 2080591, 2080606] (Ala. Civ. App. Sept. 19. 2009). The maternal grandmother appealed the termination of parental rights of the parents. The Court of Civil Appeals held that a grandparent has no legally protected parental rights, and cannot assert arguments on behalf of the parents...
Grandparents Do Not Have Standing to Appeal the Termination of Parent's Rights
Posted on September 24, 2009The Court of Civil Appeals dismissed an appeal for lack of standing in G.P. v. Houston County D.H.R., [Ms. 2080591, 2080606] (Ala. Civ. App. Sept. 18. 2009). The maternal grandmother appealed the termination of parental rights of the parents. The Court of Civil Appeals held that a grandparent has no legally protected parental rights, and cannot assert arguments on behalf of the parents...
Court Reviews Constitutional Challenge to Statute De Novo
Posted on September 21, 2009The Alabama Supreme Court applies the de novo standard of review to constitutional challenges to state statute. The Court 'approach[es] the question of the constitutionality of a legislative act ‘'with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government...
Incomplete Appellate Record Defeats Appeal
Posted on September 20, 2009In Cantrell v. Holland, No. 2080494 (Ala. Civ. App. Sept. 11, 2009), the Alabama Circuit Court of Appeals held that it was without sufficient information to decide the jurisdictional issue that the appellant raised because the record on appeal contained only one pleading...
Cases Released September 18, 2009
Posted on September 19, 2009From the Alabama Court of Civil Appeals: G.P. v. Houston County Department of Human Resources Bedsole v. Sheriff Clark Powell v. Powell DeShazo Crane Company, LLC v. Harris Crum v. LaSalle Bank, N.A. Complete List of Cases from the Alabama Court of Civil Appeals From the Alabama Supreme Court: Ex parte Blackstock; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Davis v...
Alabama Supreme Court Clarifies Elements of Tort of Wrongful Interference with a Business Relationship
Posted on September 14, 2009In White Sands Group, L.L.C. v. PRS II, LLC, the Alabama Supreme Court clarified the elements of the tort of wrongful interference with a business relationship. Those elements are now settled to be: (1) the existence of a protectible business relationship; (2) of which the defendant knows; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage...
Agreement for an Extension of Time Within Which to File an Answer Does Not Waive Venue Defenses
Posted on September 14, 2009In Ex parte Movie Gallery, the Alabama Supreme Court rejected the plaintiff's argument that the defendant had waived its venue defenses where the parties agreed to extend the time for Movie Gallery to file its answer. Nixon sued Movie Gallery on October 27, 2006...
Alabama Supreme Court Dismisses State Agencies from Appeal: Trial Court Was Without Jurisdiction Over Them
Posted on September 14, 2009In State Board of Education v. Mullins, No. 1080007, the Alabama Supreme Court dismissed state agencies from the appeal, noting sovereign immunity rendered the trial court without jurisdiction over them.The plaintiffs filed the underlying action and named a number of state education agencies and officials as defendants...
Party Waives Res Judicata Argument By Failing to Raise it in the Trial Court
Posted on September 14, 2009In Crews v. McLing, No. 1071479, released by the Alabama Supreme Court on September 4, 2009, the defendant-appellant's failure to advance the defense of res judicata in the trial court precluded him from raising it in the appellate court. The McLings sued Crews and his construction company alleging that Crews had negligently delivered and installed the mobile home that they purchased from CHI...
Cases Released September 11, 2009
Posted on September 14, 2009From the Alabama Court of Civil Appeals: Owens v. Owens Alabama State Employees Association v. Sanks Palmer v. Browning Cantrell v. Holland Edosomwan v. A.B.C. Daycare and Kindergarten, Inc. Sanders v. Sanders Silbernagel v. Maranatha Baptist Church, Inc...
Cases Released September 4, 2009
Posted on September 08, 2009From the Alabama Court of Civil Appeals: S.T.W. v. Franklin County Department of Human Resources Wehadkee Yarn Mills v. Harris Goodyear Tire and Rubber Company, Inc. v. Long Gatlin v. Joiner et al. KLW Enterprises, Inc. v. West Alabama Commercial Industries, Inc...
Another Appeal Dismissed For Failure To Comply With Rules For Appeals From Arbitration Awards
Posted on September 02, 2009Yet another appeal was dismissed for failure to follow the rules for appealing arbitration awards. In Lindsey v. Deep South Properties, LLC, [Ms. 1080701] (Ala. Aug. 21, 2009), Deep South Properties obtain an arbitration award against Lindsey...
Party Cannot Amend Complaint After Final Judgment Entered
Posted on September 02, 2009In Ex parte Progressive Specialty Ins. Co., [Ms. 1080366] (Ala. Aug. 21, 2009), the Alabama Supreme Court issued a writ of mandamus directing the trial court strike an amendment purporting to add new claims and new parties made after final judgment was entered...
Appeals From Juvenile Court Subject To Shorter Deadlines; Appeal Dismissed As Untimely
Posted on September 02, 2009In R.J.G. v. S.S.W., [Ms. 2080509] (Ala. Civ. App. Aug. 21, 2009), a portion of a father's appeal was dismissed as untimely as a result of the short deadlines for appeals from a juvenile court. Unlike in Circuit Court, post-judgment motions in a juvenile court must be filed within 14 days of the entry of the order...
Cases Released August 28, 2009
Posted on August 29, 2009From the Alabama Court of Civil Appeals: M.S. v. Alabama Department of Human Resources Corwin v. Corwin Hartley v. Hartley Wood v. Wood Grace v. Standard Furniture Manufacturing Company, Inc. Johnson v. Halagan Fort James Holding Company, Inc., d/b/a Georgia Pacific v...
In Discretionary Situations, Mandamus does not Compel Particular Exercise of Discretion
Posted on August 21, 2009Mandamus is an extraordinary remedy. When a party directs a petition for mandamus to an order that the trial court entered in exercise of its discretion, the appellate court may compel the exercise of discretion, but it may not compel that exercise in a particular manner...
Arbitration Record Must Contain Evidence of Interstate Commerce
Posted on August 21, 2009The Alabama Court of Civil Appeals recently reversed an order compelling arbitration because the record contained no evidence other than the contract itself to prove that the contract involved interstate commerce. Accent Realty, Inc. v. Snopl, No...
Trial Record Must Contain Evidence of Interstate Commerce to Support Arbitration
Posted on August 21, 2009The Alabama Court of Civil Appeals recently reversed an order compelling arbitration because the trial court record contained no evidence, other than the contract containing the arbitration clause, to prove that the transaction involved interstate commerce...
Cases Released August 21, 2009
Posted on August 21, 2009From the Alabama Court of Civil Appeals: R.J.G. v. S.S.W. Saad et al. v. Saad Weeks v. Herlong Hanks v. Spann Garrie v. Summit Treestands, LLC Complete List of Cases from the Alabama Court of Civil Appeals From the Supreme Court of Alabama: Ex parte Wallace, Jordan, Ratliff & Brandt, L...
Post-Judgment Filings Did Not Disturb Finality of Judgment - Appellate Court Had Jurisdiction
Posted on August 17, 2009The parties filed various motions following the circuit court's modification of custody. One motion was untimely, and another was more in the nature of a separate proceeding. The court purported to grant one of these motions. None of this rendered the modification order non-final...
Lower Court Could Not Refuse to Tax Appellate Costs
Posted on August 17, 2009The juvenile court could not refuse to order a losing appellee to pay the costs of appeal: The appellate court had ordered, and the governing rule mandated, that the appellee pay those costs when its original judgment was reversed. The Court of Civil Appeals directed the juvenile court to enter an order taxing the costs of appeal against the losing appellee...
Cases Released August 14, 2009
Posted on August 14, 2009From the Alabama Court of Civil Appeals: Ex parte S.C.; Petition for Writ of Mandamus (In re: S.C. v. C.C.) Nelms v. Hillside Village Apartments d/b/a Hale Properties, et al. Felder v. Allen, Commissioner of the Alabama Department of Corrections, et al...
Alabama Supreme Court Defines Affirmative Defense
Posted on August 07, 2009In Brannon v. BankTrust, Inc., Nos. 1060637, the Alabama Supreme Court discussed at length what constitutes an affirmative defense under Rule 8 of the Alabama Rules of Civil Procedure. In Brannon, the defendant bank argued that Article 4A of Alabama's version of the UCC supplanted the breach of contract claim asserted against it...
Appeal From "Interim Judgment" Dismissed as From Non-Final Judgment
Posted on August 07, 2009The Alabama Court of Civil Appeals recently dismissed an appeal from an "interim judgment" ordering the plaintiff's employer to provide medical treatment for injuries she sustained in the line and scope of employment. Read more about SouthernCare, Inc...
Cases Released August 7, 2009
Posted on August 07, 2009From the Alabama Court of Civil Appeals: M.B. v. S.B. K-Mart, Inc. v. Stewart A.M. v. J.S. Complete List of Cases Released by the Alabama Court of Civil Appeals
Rule 60 Motions Not Subject to Rule 59.1 Deadlines
Posted on July 31, 2009In Rhodes v. Rhodes, [Ms. 2070972] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals dismissed an appeal in part because the trial court never ruled on the Rule 60 motion from which review was sought. Rule 60 motions are not denied by operation of law after 90 days pursuant to Rule 59...
Dismissal "Without Prejudice" Can Support Appeal If Judgment Conclusively Determines Issue Before Court
Posted on July 31, 2009In 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...
Trial Court's Jurisdiction After Remand From Appellate Court Is Limited By Mandate
Posted on July 31, 2009In South Alabama Skills Training Consortium v. Ford, [Ms. 2080068] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals dismissed an appeal as being from a void judgment because the trial court's jurisdiction on a review of a decision of an administrative law judge was limited by certiorari review, and the trial court did not have jurisdiction to go beyond the appellate court's mandate after remand...
When Oral Testimony Is Considered By Trial Court But Not In Record on Appeal, Evidence Will Be Presumed to Be Sufficient to Support Judgment
Posted on July 31, 2009In Cockerell v. Cockerell, [Ms. 2070793] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals affirmed a divorce judgment in part because the husband failed to put a record of the oral testimony in the record. Because the appellate courts will not presume error, the Court of Civil Appeals found that it was "conclusively presumed that the testimony [was] sufficient to support the error...
Cases Releases July 31, 2009
Posted on July 31, 2009From the Alabama Court of Civil Appeals: S.T.W. v. Franklin County Department of Human Resources E.R.W. v. M.W.M. R.D.B. v. A.C. Green v. City of Montgomery SouthernCare, Inc. v. Cowart Black Creek, Inc. v. Wood Blasdel v. Blasdel Complete List of Cases from the Alabama Court of Civil Appeals From the Alabama Supreme Court: Colony Insurance Company v...
Deferential Ore Tenus Standard Does Not Apply to Questions of Law
Posted on July 27, 2009"[A]ppellate courts have limited power in reviewing a judgment of a trial court after the trial court hears evidence ore tenus. 'However, where the question presented on appeal is whether the trial court correctly applied the law, the ore tenus rule has no application...
Justice Smith Will Not Seek Re-Election; Justices Bolin and Parker Will
Posted on July 27, 2009There will be an open seat on the Alabama Supreme Court for the 2010 election. Justice Patti Smith has decided not to seek re-election. Justices Mike Bolin and Tom Parker have stated that they will seek re-election. Click on the link to "Alabama Justice Patti Smith won't run again" for a short article from the AP via al...
Cases Released July 24, 2009
Posted on July 24, 2009From the Alabama Court of Civil Appeals: J.J. v. J.B. L.S. v. Shelby County Department of Human Resources Jones v. Ruth Dunn v. Williams Guthery v. Persall Edwards v. Edwards A.W. v. K.L.W. South Alabama Skills Training Consortium v. Ford et al...
Circuit Court Lacked Jurisdiction to Award Post-Judgment Attorney Fees - Should Have Vacated Void Order Under Rule 60(b)(4)
Posted on July 21, 2009Well after the deadline had passed for filing post-judgment motions, the circuit court purported to grant a new motion to award the defendant attorney fees. This act was void for want of jurisdiction, and should have been vacated on the plaintiff's motion...
Appeal Dismissed Where Notice Was Filed Late
Posted on July 20, 2009The defendant filed his notice of appeal more than a year after the filing deadline. His appeal was dismissed for want of appellate jurisdiction. Bedgood v. McConico, No. 2080060 (Ala. Civ. App. July 10, 2009).The trial court ordered a sale of property for the division of proceeds...
Cases Released July 17, 2009
Posted on July 17, 2009From the Alabama Court of Civil Appeals: Barnes v. Barnes Dees et al. v. Coaker et al. Holt v. Whitehurst National Association of Letter Carriers v. Alabama Central Credit Union A.E.C. v. J.R.M. Alverson v. Alverson Thomas v. Thomas Bowen v. Bowen G...
Alabama Appellate Watch's Own Ivan Cooper Discusses Scrushy Case
Posted on July 16, 2009Follow this link for Ivan's discussion of recent and future events in the Scrushy matter.
Alabama Court of Civil Appeals Discusses Review of Deposition Excerpts
Posted on July 14, 2009In Hale v. Kroger Limited Partnership I, the Alabama Court of Civil Appeals provided a good deal of discussion regarding its review of deposition excerpts. Hale sued Kroger, alleging that he was injured when he fell on a jar of baby food which had spilled onto the floor of the grocery store...
Cases Released July 10, 2009
Posted on July 10, 2009From the Alabama Supreme Court: Lucky Jacks Entertainment Center, LLC v. Jopat Building Corporation et al. Complete List of Cases from the Alabama Supreme Court From the Alabama Court of Civil Appeals: Palisades Collection, LLC v. Delaney Bedgood v...
Alabama Supreme Court Reverses Grant of Summary Judgment in Builder and Landlord's Favor in Case Arising Out of Apartment Fire Set By Arsonist: Neither Intervening Intentional Act of Third Party Nor Rule of Repose Barred Claims
Posted on July 08, 2009In Collins. v. Scenic Homes, No. 1070875, consolidated with Kilgore v. Scenic Homes, Nos. 1070975, and Hopkins v. Scenic Homes, No. 1070976, the Alabama Supreme Court held that neither the intentional criminal act of arson nor the twenty year rule of repose barred tort claims against the builder who constructed an apartment complex twenty-two years before that apartment was intentionally set on fire and the landlord who operated it...
Defendant's Failure to Advance Multiple and Alternative Grounds at Motion to Dismiss Stage Circumscribes Alabama Supreme Court's Review
Posted on July 07, 2009In Gilmer v. Crestview Memorial Funeral Home, Inc., released on June 30, 2009, the court's review was restricted to only the grounds on which the defendants had moved to dismiss the plaintiff's claims: that violation of section 34-13-112 of the Alabama Code did not create a private right of action...
Alabama Supreme Court Denies Petition for Writ of Mandamus Directing the Trial Court to Enter Protective Order Prohibiting Discovery Relating to Plaintiff's Sexual History
Posted on July 07, 2009In In re Laura Kay Carlisle v. Thomas G. Moore and Atmore Animal Hospital, LLC, No, 1080038, released June 30, 2009, the Alabama Supreme Court denied the plaintiff's petition seeking a writ of mandamus directing the trial court to enter a protective order prohibiting discovery of evidence relating to the plaintiff's sexual history...
Eleventh Circuit Applies Unusual "Extremely Stringent" Standard of Review
Posted on June 30, 2009The Eleventh Circuit applies an "extremely stringent" standard to review a new trial order based on a district court's finding that a jury verdict is against the great weight of the evidence. Auto-Owners Ins. Co. v...
Cases Released June 30, 2009
Posted on June 30, 2009From the Supreme Court of Alabama: Ex parte Carlisle; Petition for Writ of Mandamus (In re: Carlisle v. Moore) Collins v. Scenic Homes, Inc., et al. Ex parte Brown; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Brown v. Brown) Gilmer v...
Constitutional Issue Not Waived Though Designated as Affirmative Defense Rather Than Counterclaim
Posted on June 29, 2009Reviewing an action for declaratory and injunctive relief, the Alabama Supreme Court held that the issue of the constitutionality of appropriations legislation was properly before the Court even though the Governor's administration should have raised the issue as a counterclaim rather than as an affirmative defense...
Appeal Dismissed for Lack of Final Judgment
Posted on June 29, 2009In Hall v. Reynolds, No. 1080408 (Ala. June 19, 2009), the trial court granted a motion for preliminary injunction but did not determine whether the plaintiff was entitled to a permanent injunction. After a bench trial, the trial court entered a "Final Order and Judgment...
Cases Released June 26, 2009
Posted on June 26, 2009From the Alabama Court of Civil Appeals: Gooden v. Board of Water and Sewer Commissioners of the City of Mobile d/b/a Mobile Area Water and Sewer System D.B. v. Coffee County Department of Human Resources K.W.N. v. H.G.T. Gordon, Dana, Still, Knight & Gilmore, LLC v...
No Attorney Fees When Collecting on Supersedeas Bond - Court Overturns and Qualifies Precedent
Posted on June 23, 2009Plaintiffs who successfully defended their judgment on appeal could not recover attorney fees incurred during the appeal when collecting against a supersedeas bond. Centering its discussion on appellate Rule 8, the Supreme Court of Alabama overturned and qualified precedent, and seems to have barred the recovery of appellate attorney fees through supersedeas bonds...
"Good Count / Bad Count" Error Yields New Trial
Posted on June 22, 2009After being charged on five claims, the jury returned a general verdict for the plaintiff. Two of the claims were not supported by substantial evidence. The verdict was thus flawed under the 'good count / bad count' rule. The Supreme Court of Alabama reversed the judgment entered on the verdict, and remanded the case for a new trial on the viable claims...
Summary Judgment Denial Not Reviewed By Mandamus Despite Involving Time Bar Against Previously Fictitious Party
Posted on June 22, 2009A defendant sought mandamus review of the circuit court's denial of its motion for summary judgment. The motion presented issues of fictitious-party practice and the statute of limitations. Because the trial court had not reached the limitations issue, and because that issue might make the fictitious-party question irrelevant, the defendant had an adequate remedy other than mandamus...
Cases Released June 19, 2009
Posted on June 19, 2009From the Alabama Court of Civil Appeals: Simmons v. Coosa County Board of Education Smith v. Smith Pike v. Reed M.G. v. Etowah County Department of Human Resources Trimble v. Trimble Hatch v. NTW Incorporated d/b/a National Tire and Battery Company Parker v...
Cases Released June 12, 2009
Posted on June 15, 2009From the Alabama Court of Civil Appeals: Ross v. Rogers Smith v. Gaston Rose v. Safeway Insurance Company of Alabama, Inc. Complete List of Cases from the Alabama Court of Civil Appeals From the Supreme Court of Alabama: Ex parte Brian Nelson Excavating, LLC; Petition for Writ of Mandamus (In re: Prater v...
Another Appeal Dismissed Pursuant to Rule 59's "Denied By Operation of Law" Language
Posted on June 10, 2009Eight Mile Auto Sales, Inc. v. Fair, discussed below, is yet another appeal dismissed pursuant to Rule 59's denied by operation of law language. Eight Mile appealed from a judgment of the circuit court denying its motion to alter, amend, or vacate an order of the district court granting a motion to stay a writ of garnishment that Eight Mile brought against Fair...
Trial Court's Failure To Hold Hearing on Post-Trial Motions Was Reversible Error
Posted on June 10, 2009While a trial court's failure to hold a hearing on post-trial motions is generally error, it rose to the level of reversible error in Cunningham v. Edwards, No. 2071214, released by the Court of Civil Appeals on June 5, 2009. In Stocks, the mother appealed from a judgment entered by the Fayette Circuit Court awarding custody of her minor children to their paternal relatives...
Court of Civil Appeals Dismisses Two Appeals As From Non-Final Judgments Where the Orders Appealed From Adjudicated Less Than All the Issues Before It, Yet Deems Another Judgment Final Where Two Motions Remained Pending in the Trial Court
Posted on June 10, 2009Appeals in both Stocks v. Stocks, No. 2081033, and Laney v. Garmon, No. 2071233, were dismissed as from non-final judgments by the Court of Civil Appeals last week. By contrast, in A.M. v. J.S, a final judgment was found to support an appeal to the same court even though the circuit court had not ruled on two motions pending before it...
U.S. Supreme Court Issues Important Recusal Decision
Posted on June 08, 2009The U.S. Supreme Court issued an interesting case on recusal today. In Caperton v. A.T. Massey Coal Co., [08-22], a 5-4 opinion, the Court recognized a due process violation when a judge refuses to recusue himself when a litigant "had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent...
Cases Released June 5, 2009
Posted on June 05, 2009From the Alabama Court of Civil Appeals: Matthew's Masonry Company v. Aldridge Eight Mile Auto Sales v. Fair Stocks v. Stocks Baker v. Baker Laney v. Garmon Cunningham v. Edwards A.M. v. J.S. Wu v. Wu Complete List of Cases from the Alabama Court of Civil Appeals From the Alabama Supreme Court: City of Montgomery v...
Successive Post-Judgment Motions Not Allowed; Court Will Not Review Order Entered In Another Case
Posted on June 05, 2009After deciding the main issues in a divorce proceeding, the Court of Civil Appeals in Washington v. Washington, [Ms. 2070718] (Ala. Civ. App. May 29, 2009), addressed some interesting appellate issues regarding certain post-judgment orders of the trial court...
Mandamus Not Appropriate Where Party Had Remedy On Appeal
Posted on June 05, 2009In Shamburger v. Lambert, [Ms. 2080218] (Ala. Civ. App. May 29, 2009), the Court of Civil Appeals reversed the writ of mandamus issued by the circuit court on a review of a district court judgment. The district court judgment had to be review by appeal and not mandamus, therefore, the mandamus was improper...
Rule 60(b)(5) Motion Cannot Be Used As Substitute For Appeal
Posted on June 05, 2009In NHS Management, LLC v. Wright, [Ms. 2071129] (May 29, 2006), the Court of Civil Appeals reversed the trial court's granting of a Rule 60(b)(5) motion for relief from judgment due to an alleged change in the law because the Rule 60(b)(5) motion was being used as a substitute for an appeal...
Party Cannot File an "Amendment" to a Complaint If Trial Court Did Not Have Jurisdiction Over Original Complaint
Posted on June 05, 2009In Off Campus College Bookstore, Inc. v. University of Alabama in Huntsville, [Ms. 1071426] (Ala. May 29, 2009), the Alabama Supreme Court applied the well-settled rule that an appeal cannot lie from a void judgment and dismissed the appeal where the trial court did not have jurisdiction over the case due to sovereign immunity...
Alabama Will Not Follow Federal Common Law Punitive Damages Rule
Posted on June 02, 2009Last June, the United States Supreme Court adopted common law standards for assessing punitive damages in Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), a federal maritime case. After reviewing the purpose of punitive damages awards, examining a host of state court punitive damages schemes and noting the "stark unpredictability" of punitive damages awards, the Court turned to "several studies ...
Appellate Court Occasionally Conducts De Novo Revliew in Ore Tenus Case
Posted on May 31, 2009"'Where a trial court hears ore tenus testimony [in a boundary-line case], . . . its findings based upon that testimony are presumed correct, and its judgment based on those findings will be reversed only if, after a consideration of all the evidence and after making all inferences that can logically be drawn from the evidence, the judgment is found to be plainly and palpably erroneous...
Appellate Court Occasionally Conducts De Novo Review in Ore Tenus Case
Posted on May 31, 2009"'Where a trial court hears ore tenus testimony [in a boundary-line case], . . . its findings based upon that testimony are presumed correct, and its judgment based on those findings will be reversed only if, after a consideration of all the evidence and after making all inferences that can logically be drawn from the evidence, the judgment is found to be plainly and palpably erroneous...
Court Reviews Waiver and New Trial Standards
Posted on May 30, 2009In affirming the jury verdict in Live v. Ventura, No. 1070736 (Ala. May 22, 2009), the Alabama Supreme Court reviewed the standard for a claim of waiver or estoppel concerning a party's prior inconsistent position. ''Any sort of judicial estoppel or waiver in the context of a prior inconsistent argument is available only when an argument has been made by the parties involved and relied upon by the courts...
New Opinion Addresses Wide Range of Final Judgment Topics
Posted on May 30, 2009Washington Mutual Bank v. Campbell, No. 1060616 (Ala. May 22, 2009), contains a lengthy, informative discussion of many procedural issues regarding final judgments. The trial court entered judgment in favor of the defendant in this state court action based on the plaintiff's failure to prosecute...
Cases Released May 29, 2009
Posted on May 29, 2009From the Alabama Court of Civil Appeals: Shamburger v. Lambert Robinson v. Baptist Health System, Inc. NHS Management, LLC et al. v. Wright Hawkins v. LaSalle Bank, National Association Washington v. Washington Complete List of Cases from the Alabama Court of Civil Appeals From the Supreme Court of Alabama: Parham v...
Cases Released May 22, 2009
Posted on May 22, 2009From the Alabama Court of Civil Appeals: Ex parte G.L.; Petition for Writ of Mandamus (In the Matter of H.C.L., a minor child) Gilbreath v. Harbour Fielding v. Fielding Johnson et al. v. Johnson Complete List of Cases from the Alabama Court of Civil Appeals From the Alabama Supreme Court: Ex parte Andrews; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Andrews v...
Trial and Appellate Courts Lacked Subject Matter Jurisdiction Over Election Disputes
Posted on May 22, 2009Two trial courts lacked subject matter jurisdiction over election disputes, where statutory criteria for jurisdiction were not met. The courts' judgments were therefore void. The appellate court lacked jurisdiction in turn and the appeals were dismissed...
Rule 60(a) Clerical Correction Does Not Affect Deadline to Appeal
Posted on May 22, 2009The plaintiff mistakenly timed his appeal from the day on which the trial court, under Rule 60(a), corrected a clerical error in its final judgment. He should have measured from the day the original judgment was entered. Filed more than 42 days after the original judgment, his appeal was late and was dismissed...
Cases Released May 15, 2009
Posted on May 18, 2009From the Alabama Court of Civil Appeals: Greater Washington Park Neighborhood Association v. Board of Adjustment of the City of Montgomery Hood v. Hood Barnes v. HMB, LLC, d/b/a Stow-A-Way Storage Pischek et al. v. Baldwin Youth Services, Inc. Carroll v...
Trial Court Has Discretion To Accept New Arguments On Rule 59 Motion
Posted on May 15, 2009In Woodruff v. Woodruff, [Ms. 2070602] (Ala. Civ. App. May 8, 2009), the Court of Civil Appeals noted the "well settled" rule that "a trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so,' and that '[w]e will reverse only if the trial court abuses that discretion...
Rule 55(c) Motion To Set Aside Default Must Be Ruled Upon In 90 Days; Party In Default Cannot Assert Claim
Posted on May 15, 2009In McGugin v. McGugin, [Ms. 2071188] (Ala. Civ. App. May 8, 2009), the Court of Civil Appeals dismissed an appeal from being from a void judgment after the trial court held proceedings in a case after it failed to rule on a Rule 55(c) motion to set aside default judgment...
On Remand, Trial Court Must Follow Mandate Without Taking Additional Evidence
Posted on May 15, 2009In Walding v. Walding, [Ms. 2080054] (Ala. Civ. App. May 8, 2009), the Court of Civil Appeals noted the rule that "on remand, a trial court must comply strictly with the appellate court's mandate 'without granting a new trial or taking additional evidence...
Trial Court Cannot Amend Judgment After 30 Days
Posted on May 15, 2009In Capone v. Capone, [Ms. 2080147] (Ala. Civ. App. May 8, 2009), the Court of Civil Appeals reversed a trial court's amendment of a judgment made more than 30 days after the judgment because the trial court lacked jurisdiction to amend the judgment.In Capone, the trial court entered a divorce judgment setting out certain obligations of the parties, including alimony, on March 26, 2007...
Cases Released May 8, 2009
Posted on May 11, 2009From the Alabama Court of Civil Appeals: D.P. v. Madison County Department of Human Resources Capone v. Capone Walding v. Walding McGugin v. McGugin Wal-Mart Stores, Inc. v. Orr Ex parte Sunbelt Transport, Inc., and Patriot Transportation Holding, Inc...
Court of Civil Appeals Dismisses Appeal as Moot
Posted on May 06, 2009In Colony Insurance Co. v. Alabama Heat Exchangers, Inc., No. 2071037, the Alabama Court of Civil Appeals held that a settlement agreement between two of the parties which resolved the coverage issues which had existed in the case mooted the appeal. There were three parties involved in Colony: Olin, AHE and One Beacon...
Where Record Contains No Indication of Proper Subject Matter Jurisdiction, Order Appealed From Was Void and Could Not Support Appellate Review
Posted on May 06, 2009In Lee v. Oliver, the Court of Civil Appeals dismissed an appeal for want of appellate jurisdiction where the record did not contain any indication of proper jurisdiction in the circuit court. Lee was an appeal from a will contest between the wife and daughters of the decedent...
Alabama Court of Civil Appeals Finds Waiver of Appellate Issues in Two Appeals
Posted on May 06, 2009Two 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...
Final Judgment Rule Results in Dismissal of Two Cases
Posted on May 06, 2009The Court of Civil Appeals dismissed two appeals last week, J. Bryant, LLC v. City of Birmingham, No. 20704553, and Morgungenko v. Dwayne's Body Shop, No. 2071080. The court held that neither appeal was from a final judgment. In the Bryant case, the part owner of an adult-entertainment establishment ("Lynn's Den") appealed from the circuit court's order reviewing the city council's denial of his dance permit...
Knowledge That Case Went to Appellate Mediation Did Not Require Court's Recusal
Posted on May 04, 2009The Supreme Court of Alabama would not recuse itself just because it knew that a case had been referred to an ultimately unsuccessful appellate mediation. Consistent with the governing rules, the Court had no confidential information concerning the mediation...
Cases Released May 1, 2009
Posted on May 01, 2009From the Alabama Court of Civil Appeals: J. Bryant, LLC v. City of Birmingham J.K. v. N.J. and Jefferson County Department of Human Resources Lee v. Oliver Butler v. MaxiStorage, Inc. Flowers v. Dean Bishop State Community College v. Douglas Morgungenko v...
Order Was Not Final Which Did Not Address Request to Modify Child Support
Posted on April 30, 2009A trial court's order adjudicated the wife's contempt petition but did not address her request for a change in the husband's child-support obligation. The order therefore was not final and would not support an appeal. Cooper v. Cooper, No...
Court of Civil Appeals Reviews Probate Appeal From Circuit Court
Posted on April 30, 2009The Court of Civil Appeals addressed two issues in probate appeals. Section 12-22-21(1) of the Alabama Code, the court first held, allows direct appeals from non-final judgments of both the probate and circuit courts. The circuit court's non-final summary judgment therefore did not need to be certified under Rule 54(b)...
Lawyer's Affidavit Thwarted Mandamus Petition; Court Exceeded Discretion By Ordering More Discovery Than Requested
Posted on April 30, 2009The Alabama Supreme Court partly granted a mandamus petition in this discovery dispute. It first held that the substantively unchallenged affidavit of the plaintiff's lawyer, describing an unrecorded hearing in the trial court, provided sufficient evidence to defeat the mandamus petition...
Fact Findings in Bench Trial Obviate Need For Objection or Post-Judgment Motion
Posted on April 29, 2009A mother argued that there was insufficient evidence to support the trial court's custody decision. She had not raised this argument in the trial court. Nonetheless, it was preserved for appeal. Because this was a bench trial, in which the trial court made factual determinations on the custody issue, the mother could challenge sufficiency on appeal without having raised it by objection or post-judgment motion below...
Appellate Court Will Not issue Advisory Opinion
Posted on April 27, 2009An 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...
Rule 54(b) Certification Abuse of Discretion where Remaining Claims Closely Intertwined with Decided Claims
Posted on April 26, 2009In Centennial Assoc., Ltd. v. Guthrie, No. 1080015 (Ala. April 17, 2009), the Alabama Supreme Court dismissed an appeal from a summary judgment disposing of all of the plaintiffs' claims against one of the defendants because the Court found that the trial court abused its discretion in issuing a Rule 54(b) certification that permitted appeal from the partial summary judgment...
Rule 62 Motion to Stay Does Not Suspend Time for Appeal
Posted on April 25, 2009Following the entry of final judgment in a wrongful death action, the defendant filed two post-judgment motions, neither of which suspended the 42 day period for filing a notice of appeal. ARAP 4(a). The Rule 62 motion to stay in which the defendant requested time to consider filing a Rule 59 motion did not satisfy the requirements of ARAP 4(a)(3)...
Cases Released April 24, 2009
Posted on April 24, 2009From the Alabama Court of Civil Appeals: Cooper v. Cooper Brown v. Brown Proctor v. Classic Automotive, Inc. Francis Powell Enterprises, Inc. v. Andrews Adams v. Adams T.G. v. Houston County Department of Human Resources Campbell v. Campbell Tyson v. Tyson Abernant Fire Department v...
Cases Released on April 17, 2009
Posted on April 20, 2009From the Alabama Supreme Court: Marvin Roland Graves v. Mary Golthy, administratrix of the estate of Freddie Gothy, Jr., deceased Affinity Hospital, L.L.C., d/b/a Trinity Medical Center, and David Brittin, R.N. v. Doris Williford, as administrator ad litem of the estate of Kristopher Mark Kean, deceased Centennial Associates, Ltd...
Supreme Court Dismisses Appeal for Lack of Subject Matter Jurisdiction
Posted on April 15, 2009In Bon Harbor, LLC v. United Bank, the Alabama Supreme Court dismissed two consolidated appeals due to lack of subject matter jurisdiction: one appeal was from a non-final judgment; the other was from a judgment that was void because it was entered while the first order was on appeal...
Court of Civil Appeals Dismisses Appeal as Untimely Where Trial Court Failed to Enter Order into SJIS
Posted on April 15, 2009In Dulaney v. Dulaney, released last week by the Court of Civil Appeals, the court held that the mother's notice of appeal was untimely filed even though the trial court failed to enter the order into SJIS and she did not otherwise have notice of it...
Cases Released April 10, 2009
Posted on April 10, 2009From the Alabama Court of Civil Appeals: Cotten v. St. Bernard Preparatory School Dulaney v. Dulaney Haynes v. Coleman Complete List of Cases from the Alabama Court of Civil Appeals From the Alabama Supreme Court: Ex parte Barnett; Petition for Writ of Certiorari to the Court of Criminal Appeals (In re: Barnett v...
Striking Of Expert For Failure To Timely Disclose In Accordance With Scheduling Order Not A "Sanction"
Posted on April 10, 2009In Cobb v. Fisher, [Ms. 1071501] (Ala. April 2, 2009), the Alabama Supreme affirmed the trial court's striking of an expert which was disclosed in an untimely matter in a medical malpractice case. The and further concluded that the striking of the expert, which resulted in summary judgment for the defendant, was not technically a "sanction...
Narrative Summary of Undisputed Facts Must Be Before Trial Court When It Rules on Motion For Summary Judgment
Posted on April 10, 2009An interesting discussion of the requirement that a narrative summary of unsdisputed facts, as required by Ala. R. Civ. P. 56, must be before the trial court when it rules on a summary judgment motion is found in Kelmore, LLC v. Alabama Dynamics, Inc...
Failure To Inclue Transcript Or 10(d) Statement Means Trial Court's Findings Conclusively Presumed To Support Judgment
Posted on April 10, 2009In Beverly v. Beverly, [Ms. 2071085] (Ala. Civ. App. April 3, 2009), the Court of Civil Appeals found that a judgment was supported by the evidence because no transcript or statement of proceedings was in the record.After receiving ore tenus evidence, the trial court made certain factual findings in its order requiring post-minority child support...
Party Generally Cannot Cross-Appeal Favorable Ruling
Posted on April 08, 2009In Picard v. Credit Solutions, Inc., No. 08-11104 (April 6, 2009), the Eleventh Circuit held that it lacked jurisdiction over the plaintiff's cross-appeal of an issue in an order in her favor. Noting that the language that the plaintiff challenged was dicta, the Court explained that, "'[o]rdinarily, the prevailing party does not have standing to appeal because it is assumed that the judgment caused that party no injury...
Cases Released April 3, 2009
Posted on April 06, 2009From the Alabama Court of Civil Appeals: Mason v. Wilson C.S.B. v. State Department of Human Resources Beverly v. Beverly Rogers v. Penske Truck Leasing Co., L.P. Steward v. Steward Complete List of Cases from the Alabama Court of Civil Appeals From the Alabama Supreme Court: Governor Riley v...
Appellate Court Raises Indispensable Party Issue First Time on Appeal
Posted on April 05, 2009"The absence of an indispensable party is a jurisdictional defect that renders a proceeding void." Allbritton v. Dawkins, No. 2080063 (Ala. Civ. App. March 27, 2009). When a "'final judgment will affect ownership of an interest in real property, all parties claiming an interest in the real property must be joined...
Court Determines Standard of Review for Denial of AALA Claim
Posted on April 05, 2009In Mahoney v. Loma Alta Property Owners Assoc., No. 2080192 (Ala. Civ. App. March 27, 2009), the Court of Civil Appeals noted that although the Alabama Supreme Court has identified the standard of review for trial court awards of damages under the Alabama Litigation Accountability Act, the Court has not addressed the standard of review for appeals from orders denying a claim for ALAA damages...
Court Explains Worker's Compensation Causation Standard of Review
Posted on April 01, 2009In Waters Brothers Contractors, Inc. v. Wimberley, No. 2070871 (Ct. Civ. App. March 6, 2009), the Alabama Court of Civil Appeals discussed the standard of review regarding causation in a worker's compensation case. The court found that the employer's expert's testimony did not defeat the employee's claim for benefits...
Non-Final Post-Divorce Proceeding Will Not Support Appeal
Posted on April 01, 2009The Court of Civil Appeals dismissed an appeal from an action to modify a divorce judgment because the trial court's decision did not include a ruling on the father's request for a finding of contempt. Hollander v. Barnes, No. 2070627 (Ct. Civ. App. March 6, 2009)...
Cases Released March 27, 2009
Posted on March 27, 2009From the Alabama Court of Civil Appeals: Mahoney v. Loma Alta Property Owners Association, Inc. Campton v. Miller Galloway v. Ozark Striping, Inc. Allbritton v. Dawkins Burleson v. Burleson Shewbart v. Shewbart McConico v. Correctional Medical Services, Inc...
Representative Could Not Bring Wrongful Death Claim That Was Time-Barred to Decedent
Posted on March 26, 2009A personal representative could not bring a wrongful death suit where the underlying personal injury claim would have been time-barred to her decedent. The Supreme Court of Alabama affirmed a summary judgment dismissing the representative's claim. The court also discussed intertwining issues of limitations and conflict of laws...
Void Default Judgment Should Have Been Vacated Under Rule 60(b)(4)
Posted on March 25, 2009Where a defendant was not served with process, a default judgment entered against her was void for lack of personal jurisdiction. The trial court should have granted her motion to vacate that judgment under Rule 60(b)(4). The Court of Civil Appeals reversed the lower court and ordered the default judgment vacated...
Appeal From Non-Final Denial of Hearing Would Not Be Treated As Mandamus Petition
Posted on March 25, 2009The juvenile court did not adjudicate "all matters in controversy," in a dependency case, by denying the mother's request for a hearing. That denial therefore was not a final judgment that would support an appeal. Nor did the mother present evidence showing that the lower court had exceeded its discretion in refusing to grant a hearing...
"Justice for all: The Alabama Supreme Court affects the lives of all Alabamians"
Posted on March 23, 2009Here is a link to an opinion piece from The Anniston Star entitled "Justice for all: The Alabama Supreme Court affects the lives of all Alabamians" about recent oral arguments before the Alabama Supreme Court.
Cases Released March 20, 2009
Posted on March 20, 2009From the Alabama Court of Civil Appeals: J.W.K. v. Marshall County Department of Human Resources Cleveland v. Cleveland Dennis v. Still Waters Residential Association, Inc. Stanford v. Stanford Wright v. Wright Complete List of Decisions from the Alabama Court of Civil Appeals From the Alabama Supreme Court: Ex parte Folsom; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Folsom v...
Untimely Filing of Notice of Appeal Results in Dismissal in Part
Posted on March 16, 2009In Liberty Mutual Insurance Company v. Greenway Enterprises, Inc., released by the Alabama Court of Civil Appeals on March 13, the court dismissed the appeal in part for failure to timely file a notice of appeal. Liberty Mutual sued Greenway in this workers' compensation and employers' liability insurance policy case...
"Experience wanted for judge jobs"
Posted on March 16, 2009Bills pending in the Alabama Legislature would set minimum periods that a person would have to be a licensed attorney before becoming a judge. For an article on these bills, click the link to "Experience wanted for judge jobs" from The Birmingham News, via al...
Cases Released March 13, 2008
Posted on March 13, 2009From the Alabama Court of Civil Appeals: S.D.P. v. U.R.S. Crum et al. v. Johns Manville, Inc., et al. Parris v. Prison Health Services, Inc. Belcher v. Belcher Liberty Mutual Insurance Companies v. Greenway Enterprises, Inc. Complete List of Decisions from the Alabama Court of Civil Appeals From the Alabama Supreme Court: Ex parte City of Dothan; Petition for Writ of Mandamus (In re: City of Dothan v...
Court of Civil Appeals Dismisses Appeals For Lack of Jurisdiction
Posted on March 10, 2009The duty of the appellate court to dismiss appeals where it does not have jurisdiction is evidenced in three cases from the Court of Civil appeals this week. In K.S. v. H.S., {Ms. 2071034] (Ala. Civ. App. March 6, 2009), the Court of Civil Appeals dismissed the appeal ex mero motu because the underlying judgment was void...
Motion For Summary Judgment Must Be Based On Evidence, Not Mere Averments
Posted on March 10, 2009In Jones-Lowe Company v. Southern Land and Exploration Company, Inc., [Ms. 1071575] (Ala. March 6, 2009), the Alabama Supreme Court reversed the trial court's granting of a motion for summary judgment because the motion was based on mere averments and not supported by evidence filed with the trial court...
Cases Released March 6, 2009
Posted on March 09, 2009From the Alabama Court of Civil Appeals: Hale v. Kroger Limited Partnership I W.C.R. v. D.A.L. and D.L. K.S. v. H.S. Brown v. Brown R.T.B. v. Calhoun County Department of Human Resources Hurst v. Eagles Landing IV, Ltd. Waters Brothers Contractors, Inc...
Court Underscores Distinction Between Moving for JML and Challenging Jury Charges
Posted on February 24, 2009A defendant correctly moved at trial for judgment as a matter of law (JML) on the ground that the evidence did not raise a jury question. In arguing that the defendant had to challenge the correctness of the jury charges in order to preserve this JML argument, the plaintiffs were confusing different legal phenomena...
Notice Filed in Wrong Court, And Not on Form ARAP-1, Nonetheless Secured Appeal
Posted on February 23, 2009A homeowner filed a notice of appeal that was not on the Form 1 contained in the Alabama Rules of Appellate Procedure. Moreover, she mistakenly filed her notice in the county’s district rather than circuit court. However, her notice contained all the information required by law, and the district and circuit courts shared the same clerk...
Landowner Could "Reasonably Burden" Neighbor's Easement
Posted on February 23, 2009The Court of Civil Appeals reaffirmed a longstanding principle of property law, holding that a property owner could erect a gate on his land, even though the gate crossed, and, “at worst,” “negligibly” burdened a neighbor’s easement...
Cases Released February 20, 2009
Posted on February 20, 2009From the Alabama Court of Civil Appeals: Horton v. Perkins Williams v. Hill Gardner v. State of Alabama Water and Wastewater Board of the City of Madison v. City of Athens Hammond v. Lovvorn Whorton v. Bruce Norandal U.S.A., Inc. v. Graben Complete List of Decisions from the Alabama Court of Civil Appeals From the Alabama Supreme Court: Ex parte Perch; Petition for Writ of Mandamus (In re: Perch v...
Consolidated Appeals Dismissed; Underlying Judgments Void
Posted on February 14, 2009Both of the consolidated appeals in Hayes v. Hayes were dismissed as from void judgments. The participants this custody/child support dispute appealled from judgments dated August 4, 2008 and August 28, 2008. The court dismissed both of the appeals, however, finding that the trial court lacked jurisdiction to enter either of them...
Bulk of Appeal Dismissed as Untimely Filed
Posted on February 14, 2009The Court of Civil Appeals dismissed the bulk of the appellant's appeal in Watson v. Whittington Real Estate, LLC as untimely filed.Two orders were at issue in Watson: the first was a January 10, 2007 judgment which "disposed of all remaining claims in all cases, except for the amount of attorneys fees and costs...
Improper Rule 54(b) Certification Results in Dismissal of Appeal
Posted on February 14, 2009In Schlarb v. Lee, the Alabama Court of Civil Appeals held that improper Rule 54(b) certification warranted dismissal of this appeal. Scharb embodies the litigants' second attempt at appealing the orders of the trial court. This time around, the trial court entered an order on March 28, 2008 certifiying its February 21, 2008 order as final pursuant to Rule 54(b)...
Cases Released February 13, 2009
Posted on February 13, 2009From the Alabama Supreme Court: Ex parte Steele; Petition for Writ of Certiorari (In re: Steele v. State of Alabama) Ex parte McConico; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: McConico v. State of Alabama) Ex parte Webb et al...
Negligence of Attorney Is Not Imputed to Insurance Company Which Retained Attorney to Represent Insured
Posted on February 11, 2009In a question of first impression in Alabama, the Court in Lifestar Response of Alabama, Inc. v. Admiral Insurance Company, [Ms. 1060776] (Ala. Feb. 6, 2009), held that the negligence of an attorney hired to represent an insured is not imputed to the insurance company which retained the attorney...
New Civil Procedure Rules For Review of Arbitration Awards Now In Effect
Posted on February 10, 2009One issue which has been the subject of many recent Alabama Supreme Court opinions is the proper procedure by which to review arbitration awards in the trial court. In response to these cases, the court has instuituted new rules setting out the proper procedure...
Non-Resident Aliens Not Entitled to Recovery of Death Benefits Under Alabama's Workers' Compensation Act
Posted on February 10, 2009In Duran v. Goff Group, [Ms. 2070763] (Ala. Civ App. Feb 6, 2009), the Court of Civil Appeals held that non-resident aliens are not entitled to the death benefits as a result of the death of a worker. The statute specifically provides that "Compensation for the death of an employee shall be paid only to dependants who, at the time of the death of the injured employee, were actually residents of the United States...
Setting Aside of Default Judgment Affirmed
Posted on February 10, 2009In Moore v. Welch, [Ms. 2070709] (Ala. Civ. App. Feb. 6, 2009), an employee sued his co-employees for willfulness resulting in an on the job injury after he was seriously burned when two fire extinguishers malfunctioned and the flames could not be put out...
"Time of Performance Clause" Does Not Merge Into Deed Upon Closing For Purpose of Breach of Contract Claim in Real Estate Transaction
Posted on February 10, 2009In a case of first impression in Alabama, the Court of Civil Appeals held that a "time of performance clause" in a real estate contract did not merge into the final deed upon delivery. Brogden v. Durkee, [Ms. 2070265] (Ala. Civ...
Appeal of Arbitration Award Dismissed Because Judgment Was Never Enetered; Alternate Bases For Jurisdiction Rejected
Posted on February 10, 2009In Dawsey v. Raymind James Financial Services, Inc. [Ms. 1070861] (Ala. Feb. 6. 2009), the Alabama Supreme Court dismissed an appeal of an arbitration award because the Circuit Court Clerk had not entered the judgment, as is required to begin judicial review of an award...
Appeal of Arbitration Award Dismissed Because Judgment Was Never Entered; Alternate Bases For Jurisdiction Rejected
Posted on February 10, 2009In Dawsey v. Raymind James Financial Services, Inc. [Ms. 1070861] (Ala. Feb. 6. 2009), the Alabama Supreme Court dismissed an appeal of an arbitration award because the Circuit Court Clerk had not entered the judgment, as is required to begin judicial review of an award...
Court Reviews Sua Sponte Judgment on the Pleadings De Novo
Posted on February 09, 2009In Medlock et al. v. Safeway Ins. Co., No. 1071303 (Ala. Jan. 30, 2009), the Alabama Supreme Court reviewed de novo the judgment that the trial court entered in a declaratory judgment action before the plaintiff insurance company filed a motion for summary judgment...
Appellee May Not Cross-Appeal Summary Judgment in its Favor
Posted on February 09, 2009In American General Life Ins. Co. v. Schoenthal Family, LLC, No. 08-10749 (11th Cir. Jan. 30, 2009), American General cross-appealed from a summary judgment in its favor on its claim for rescission of an insurance policy. AG argued that the district court should have entered judgment in its favor on other grounds that AG raised in its summary judgment motion...
Court Decides Appeal Though Appellant Did Not Comply With Briefing Rule
Posted on February 08, 2009The Court of Civil Appeals in Barnette v. Robertson, No. 2070689 (Ala. Civ. App. Jan. 30, 2009), exercised its discretion to address the merits of the appellant’s argument even though the appellant, “in contravention of Rule 28(a)(10), Ala...
Determination of Mootness Not Final Judgment -- Supports Neither Appeal Nor Mandamus
Posted on February 06, 2009The probate court did not enter a “final judgment” by holding that a request for litigation costs was moot. The circuit court erred, therefore, by faulting the defendants for not appealing from that holding or seeking a writ of mandamus to correct it...
Cases Released February 6, 2009
Posted on February 06, 2009From the Alabama Supreme Court: Lifestar Response of Alabama, Inc. v. Admiral Insurance Company Ex parte Martinez; Petition for Writ of Certiorari to the Court of Criminal Appeals (In re: Martinez v. State of Alabama) Ex parte Navistar, Inc., f/k/a International Truck and Engine Corporation; Petition for Writ of Mandamus (In re: Price v...
Party Cannot Appeal Judgment That Does Not Affect It Adversely
Posted on February 05, 2009The Jefferson County Sheriff’s Department was not adversely affected by a decision of the county’s Personnel Board. Therefore, the Department could not appeal from that decision. The circuit court should have dismissed the Department’s appeal...
Issue Was Preserved Where Trial Court Understood Basis of Objection to Jury Charge
Posted on February 05, 2009Even if the objection to a jury charge could have been more specific, the record showed that the trial court understood the basis of the objection, and had a chance to rule on the issue it raised. This was enough to preserve the issue for appeal...
Cases Released January 30, 2009
Posted on January 30, 2009List of Cases from the Supreme Court of Alabama Medlock v. Safeway Insurance Company of Alabama Ex parte Citizens Property Insurance Corporation; Petition for Writ of Mandamus (In re: Garnett v. Citizens Property Insurance Corporation, et al.) Mobile Gas Service Corporation v...
Cases Released January 23, 2009
Posted on January 26, 2009List of Cases from the Alabama Court of Civil Appeals Ex parte Massey Chevrolet, Inc., Petition for Writ of Mandamus; In re: Aderhold v. Massey Chevrolet, Inc. LaConsay v. Langley Ex parte Jefferson County Sheriff's Department, Petition for Writ of Certiorari; In re: Jefferson County Sheriff's Department v...
Cases Released on January 16, 2009
Posted on January 21, 2009From the Alabama Court of Civil Appeals: Rhodes v. Fulmer Betty G. Eldridge v. Rebecca Eldridge and Martin Eldridge, in their capacities as co-executors of the estate of Robert L. Eldridge J.A. v. Etowah County Department of Human Resources Jesse Earl Long, Jr...
Alabama Supreme Court Announces New Rule for Accrual of Breach of Repair Warranty Claim
Posted on January 21, 2009In Brown v. General Motors, Case No. 1061660, the Alabama Supreme Court overruled Tittle v. Steel City Oldsmobile GMC Truck, Inc., 544 So.2d 883 (Ala. 1989) and held that a claim for breach of repair warranty accrues at the time a manufacturer breaches its contractual obligation to repair, not at the time of the tender of delivery of the good...
Alabama Supreme Court Reiterates That Motion for Protective Order is Prerequisite to Mandamus Review of Order Compelling Discovery
Posted on January 21, 2009In Ex parte The Terminix International Company Limited Partnership, No. 1061247, the Alabama Supreme Court reaffirmed its long-standing requirement that a timely filed motion for a protective order is a jurisdictional prerequisite to mandamus review of an order compelling discovery...
Untimely Postjudgment Proceedings in the Probate Court Render Circuit Court Without Jurisdiction; Appeal Dismissed as From a Void Judgment
Posted on January 21, 2009In Eldridge v. Eldridge, the Alabama Court of Civil Appeals dismissed an appeal in a case originating in the probate court as from a void judgment because postjudgment motions in the probate court were not timely filed. In Eldridge, the probate court entered a final judgment on August 10, 2006...
Alabama Court of Civil Appeals Dismisses Appeal; Rule 60 Motion Does Not Toll Time for Filing a Notice of Appeal
Posted on January 21, 2009On January 16, 2009, the Alabama Court of Civil Appeals dismissed Rhodes v. Fulmer, Case No. 2070664, as untimely filed. The circuit court entered a judgment in this brother/sister will contest on October 3, 2007 which ordered the brother to pay his one third share of an amount to his sister, as well as to convey certain real estate contained in the estate...
Cases Released January 16, 2009
Posted on January 16, 2009From the Alabama Court of Civil Appeals: Hamilton v. Hamilton Long v. City of Athens J.A. v. Etowah County Department of Human Resources Eldridge v. Eldridge Rhodes v. Fulmer
Petition For Writ of Mandamus Denied As Untimely
Posted on January 15, 2009In Ex parte CJA [Ms. 2070994] (Ala. Civ. App. Jan. 9. 2009), the Court of Civil Appeals denied a petition for writ of mandamus because it was filed after the presumptively reasonable time to appeal, and did not state good cause for failing to file it within the reasonable time...
"Manifest Disregard Of The Law" No Longer A Valid Basis On Which To Challenge Arbitration Award
Posted on January 15, 2009The Alabama Supreme Court followed the lead of the United States Supreme Court and held that, for cases decided under the Federal Arbitration Act, manifest disregard for the law is not a valid basis on which to challenge the arbitration award. In Hall Street Associates, LLC v...
Arbitration Award Becomes Appealable Only After Being Entered As a Judgment By The Circuit Court Clerk
Posted on January 15, 2009In Championcomm.net of Tuscaloosa, Inc. v. Morton, [Ms. 1070488] (Jan. 9, 2009), the Alabama Supreme Court dismissed the appeal of an arbitration award because there was no "final judgment." Ala. Code 6-6-15 sets out the procedure by which an arbitration award may be appealed, and it states that "the clerk or register shall enter the [arbitration] award as the judgment of the court...
Mandamus Review Not Available For Pre-Trial Ruling On Motion In Limine
Posted on January 15, 2009Although it was decided in the criminal law context, the case Ex parte King, [Ms. 1071540] (Ala. Jan. 9, 2009), may be instructive in civil cases. In King, the Alabama Supreme Court held that mandamus review of a pre-trial ruling on a motion in limine regarding evidence is not approrpiate...
Transfer Based On Forum Non Conveniens Not Allowed Where Venue Is Not Proper In Original County
Posted on January 15, 2009In Ex parte AIG Baker Orange Beach Wharf, [Ms. 1071345] (Ala. Jan. 9, 2009), the Alabama Supreme Court held than an order transferring a case based on forum non conveniens is only proper where venue is proper in the original county. If venue is improper in the original county, then a transfer based on forum non conveniens is inappropriate, and the case would have to be sent back to the original county, even though venue is not proper there...
Rule 54(b) Certification Improper Where Ruling Did Not Dispose Of All Aspects of Claim
Posted on January 15, 2009In Alfa Mutual Ins. Co. v. Bone, [Ms. 1061808, 1061834] (Ala. Jan. 9, 2009), the Alabama Supreme Court dismissed an appeal based on an improper Rule 54(b) certification where the order did not dispose of all aspects of the declaratory judgment claim. Disposing of some, but not all, issues raised by a claim does not support a Rule 54(b) certification...
Post-Judgment Motions Are Denied By Operation of Law on 90th Day After Filing, Not 91st
Posted on January 15, 2009In Williamson v. Foutrth Avenue Supermarket, Inc., [Ms. 1070771] (Ala. Jan. 9, 2009), the Alabama Supreme Court dismissed an appeal as untimely, and clarified that a post-judgment motion is denied by operation of law on the 90th day after filing, not the 91st...
Cases Released January 9, 2009
Posted on January 12, 2009From the Alabama Court of Civil Appeals: Stephens v. Huie Ex parte C.J.A., Petition for Writ of Mandamus; In re: In the matter of E.C.H., a minor A.M.B. v. J.M.S. Ex parte Russell, Petition for Writ of Mandamus; In re: Myers v. Russell, acting commissioner, Alabama Department of Revenue Lackey v...
Procedural Errors Doom Appeal
Posted on January 12, 2009The Court of Civil Appeals's decision in Chaney v. Ala West et al., No. 2070599 (Ala. Civ. App. Dec. 31, 2008), illustrates why parties should be particularly vigilant about appellate procedure in cases involving numerous parties and claims. The trial court over a two year period entered summary judgment in favor of all of the defendants on all of the plaintiffs' claims...
Implicit Holding Does Not Have Force of Stare Decisis
Posted on January 12, 2009Conclusions implicit in a court's ultimate decision do not have the force of stare decisis. Cochran v. Chapman, No. 2070541 (Ala. Civ. App. Dec. 31, 2008). "'For a case to be stare decisis on a particular point of law, that issue must have been raised in the action, decided by the court, and its decision made part of the opinion of the case; accordingly, a case is not binding precedent on a point of law where the holding is only implicit or assumed in the decision but is not announced ...
Standard of Review for Judicial Estoppel Undecided
Posted on January 11, 2009In Henriksen v. Roth, No. 1060875 (Ala. Dec. 31, 2008), the Alabama Supreme Court left for another day the question of the proper standard of review for issues regarding judicial estoppel. "Henriksen urges this Court to apply a de novo standard of review regarding the trial court's refusal to grant her judicial-estoppel motion, arguing that the issue is purely a question of law...
Cases Released December 31, 2008
Posted on December 31, 2008From the Supreme Court of Alabama: Lawson v. Moore Henriksen v. Roth From the Alabama Court of Civil Appeals: Alabama Department of Revenue v. Harris B.L.T. v. V.T. and D.T. Chaney, et al. v. Ala West-AL, LLC Dunn v. Dunn Alabama State Personnel Board v...
Various Notes From Decisions of December 19, 2008
Posted on December 30, 2008No decision released on December 19, 2008 turned centrally on a question of post-judgment or appellate law. Consequently, no one case seemed worth summarizing here. Several familiar points of appellate law did arise in these cases, though. Hoping that readers will find it useful, we recount these points briefly...
Cases Related on December 19, 2008
Posted on December 19, 2008pFrom the Supreme Court of Alabama:/p pa href="http://www.alabamaappellatewatch.com/uploads/file/1071702.PDF"Ex Parte Governor Bob Riley and Robert L. Childree, comptroller of the State of Alabama Petition of Writ of Mandamus (In re: Joint Fiscal Committee of the Alabama legislature, et al...
Cases Released on December 19, 2008
Posted on December 19, 2008pFrom the Supreme Court of Alabama:/p pa href="http://www.alabamaappellatewatch.com/uploads/file/1071702.PDF"Ex Parte Governor Bob Riley and Robert L. Childree, comptroller of the State of Alabama Petition of Writ of Mandamus (In re: Joint Fiscal Committee of the Alabama legislature, et al...
Alabama Supreme Court Holds that Exxon is Not Entitled to Post-Judgment Interest on Declaratory Judgment Because the Judgment Was Not a Money Judgment
Posted on December 18, 2008p class="LFWBlank" style="margin: 0in 0in 12pt"font size="3"font face="Times New Roman"span style="mso-spacerun: yes"span style="font-size: 12pt"In a href="http://http://www.alabamaappellatewatch.com/uploads/file/exxon post judgment(1).pdf"uExxon Mobil Corp...
Alabama Supreme Court Holds that Exxon is Not Liable For Post-Judgment Interest on Declaratory Judgment Because the Judgment Was Not a Money Judgment
Posted on December 18, 2008In Exxon Mobil Corp. v. State Dep’t. of Conservation and Natural Res., No. 1070716, released December 12, 2008, the Alabama Supreme Court held that a judgment ordering Exxon to compute royalties “according to the leases as interpreted by the jury,” was not a money judgment and therefore not subject to postjudgment interest...
The Ninety-Day Rule Strikes Again: Untimely Appeal Dismissed
Posted on December 17, 2008p class="LFWBlank" style="margin: 0in 0in 12pt"span style="font-family: Arial; mso-bidi-font-family: 'Times New Roman'"font size="3"In ua href="http://www.alabamaappellatewatch.com/uploads/file/mcaffee.pdf"McAfee v. Garrison/a/u, No. 2070857, released December 12, the Court of Civil Appeals dismissed an appeal as untimely where the fatherrsquo;s notice of appeal was not filed within 42 days of the denial of his post-judgment motions as a matter of law...
Court of Civil Appeals Reverses Trial Court's Setting Aside of a Domesticated Default Judgment Pursuant to Rule 60(b)
Posted on December 17, 2008p class="LFWBlank" style="margin: 0in 0in 12pt"In ua href="http://www.alabamaappellatewatch.com/uploads/file/cambria.pdf"Camb/a/uua href="http://www.alabamaappellatewatch.com/uploads/file/cambria.pdf"ria v. Worldwide Custom Materials, Inc/a./u, No. 2070855, released by the Alabama Court of Civil Appeals, the court reversed the trial courtrsquo;s order setting aside a domesticated default judgment pursuant to Rule 60(b)...
Cases Released December 12, 2008
Posted on December 12, 2008From the Supreme Court of Alabama: Brown v. ABUS Kransysteme GmbH Alabama Department of Conservation and Natural Resources, et al. v. Exxon Mobil Corporation f/k/a Exxon Corporation Southland Bank v. A&A Drywall Supply Company, Inc. Alabama Department of Corrections v...
Failure to Attach Relevant Documents to Mandums Petition Leads to Denial
Posted on December 12, 2008In Ex parte Allianz Ins. Co. of North America, [Ms. 1070114] (Ala. Dec. 5, 2008), the Court demonstrated the importance of attaching all necessary documents to a petition for writ of mandamus. The petitioners sought a writ of mandmus to have an order compelling discovery reversed...
Case Transfered Pursuant to "Interest of Justice" Prong of Forum Non Conveniens Statute
Posted on December 12, 2008The increasing importance of the "interest of justice" prong of Alabama's forum non convenuiens statute mandated transfer of a cse in Ex parte Indiana Mills & Mfg., Inc. [Ms. 1070229] (Ala. Dec. 5, 2008).In Ex parte Indiana Mills, a truck crash in Lee County, Alabama killed the driver of the truck...
Claims "Too Intertwined" For 54(b) Certification
Posted on December 10, 2008Counterclaims could not be certified as final under Rule 54(b), and thus made appealable, where the circuit court had not yet resolved the plaintiff’s “closely intertwined” claims. The 54(b) certification was held improper and the appeal dismissed...
"Separated" Claim Did Not Yield Final Judgment
Posted on December 09, 2008A trial court did not enter a final judgment by disposing of a claim that had been separated for trial under Rule 42(b) where another claim remained pending. Hamilton v. CSC Distribution, Inc., No. 2070813 (Ala. Civ. App. Dec. 5, 2008).The plaintiff sued her employer for retaliatory discharge...
Motion to Set Aside Default Judgment Tolls Appeal Deadline; Redundant Rule 59(e) Motion "Not Allowed"
Posted on December 09, 2008The Court of Civil Appeals ordered the circuit court to set aside a default judgment. In doing so, the appellate court reviewed two less common points of post-judgment procedure. First, a motion to set aside a default judgment suspends the time for taking an appeal until the motion is ruled upon...
Plaintiff's Requested Dismissal May Provide Controverted Final Judgment for Appeal
Posted on December 08, 2008Before a circuit court may review an appeal, the court must be satisfied that it has jurisdiction. A statute must confer jurisdiction, and the award that the plaintiff seeks must be within constitutional limits. Section 1291 permits appeals from final judgments...
Eleventh Circuit Certifies Two Indemnity Questions to Alabama Supreme Court
Posted on December 05, 2008Before it will decide an appeal from a summary judgment in Ohio Casualty Ins. Co. v. Holcim, No. 07-15931 (11th Cir. Nov. 17, 2008), an action in which the plaintiff seeks indemnity under the terms of a supply agreement for a settlement payment in an underlying personal injury action, the Eleventh Circuit has certified two questions about Alabama indemnity law to the Alabama Supreme Court pursuant to Rule 18 of the Alabama Rules of Appellate Procedure...
Cases Released December 5, 2008
Posted on December 05, 2008From the Alabama Court of Civil Appeals: Thibodeau v. Thibodeau Hamilton v. CSC Distribution, Inc. Gregory d/b/a Top Flight Construction, Inc. v. Ferguson State Department of Industrial Relations v. Campbell Ex parte Riley, Petition for Writ of Mandamus; In re: Couch v...
Writ of Certiorari is not Substitute for Appeal
Posted on December 04, 2008A nurse had no avenue for review of an Alabama Board of Nursing consent order reprimanding her for practicing in Alabama without a state nursing license. The Court of Civil Appeals held that the trial court properly dismissed the nurse's petition for writ of certiorari to set aside the consent order because she voluntarily relinquished her right to appeal in the consent order, and "a common-law writ of certiorari is not available when the petitioner has a right to appeal...
No Justiciable Controversy Supports Appeal Where Parties Agree
Posted on December 04, 2008In Fenn v. Ozark City Schools Board of Education, No. 1070821 (Ala. Nov. 21, 2008), the Alabama Supreme Court vacated the underlying judgment and dismissed the appeal because the plaintiff and the defendant "had no real differences between themselves," so that there was no controversy for the Court to resolve...
Cases Released November 26, 2008
Posted on December 02, 2008From the Supreme Court of Alabama: Ex parte Doucette, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Doucette v. State of Alabama Ex parte Davis, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Davis v...
Appeal from Improper Rule 54(b) Order Dismissed
Posted on December 02, 2008The Alabama Supreme Court dismissed the appeal from the summary judgments in Howard v. Allstate Ins. Co. et al., No. 1071215 (Ala. Nov. 21, 2008). The trial court entered summary judgment in favor of some of the defendants. After the trial court certfied the summary judgments as final, over the plaintiffs' objection, the plaintiffs appealed...
Cases Released November 21, 2008
Posted on November 21, 2008From the Alabama Court of Civil Appeals: Lee v. Alabama Board of Nursing Ashley's Seining v. JMK Farms D.C.L. v. Marion County Department of Human Resources Bishop State Community College v. Thomas Boudreau v. Slaton
Alabama Court of Civil Appeals Dismisses Appeal from Order Entered By Lower Court Lacking Jurisdiction
Posted on November 17, 2008In Darby v. Schley, the Court of Civil Appeals dismissed an appeal from an order entered by the circuit court in an unlawful-detainer action; because only district courts have jurisdiction over unlawful-detainer actions, the judgment was void and would not support an appeal...
Alabama Court of Civil Appeals Releases Two Cases Showing Different Sides of Final Judgment Rule
Posted on November 17, 2008On November 14, the Alabama Court of Civil Appeals released two cases involving different sides of the final judgment rule.Evans v. First National Bank of Jasper, involved an appeal from an action on a promissory note and security agreement...
Alabama Supreme Court Refuses to Review Order Refusing Recusal Where Issue Was Raised for the First Time in Post-Trial Motions
Posted on November 17, 2008In Greene v. Jefferson Co. Commission, released November 14, 2008, the Alabama Supreme Court refused to review the trial court's order refusing a motion for recusal because the issue was not raised until the post-trial motions stage.Greene arises from litigation filed against the Jefferson County Commission and the General Retirement System for Employees of Jeffersson County involving certain retirement benefits for Jefferson county employees...
Motion to Reconsider Treated as Motion for Protective Order in Case Seeking Mandamus Review of Order Allowing Discovery in Medical Liability Act Case
Posted on November 17, 2008In Ex parte Gentiva Health Services, Inc., released by the Alabama Supreme Court on November 14, 2008, the court reviewed a trial court's order allowing discovery of privileged materials in a medical malpractice act even though the party against whom discovery was sought had not filed a motion for protective order in the trial court...
Alabama Supreme Court Holds that Wantonness Subject to Six-Year Limitations Period
Posted on November 17, 2008In Carr v. International Refining & Manufacturing Co., d/b/a IRMCO, No. 1070770 (November 13, 2008), the Alabama Supreme Court held that wantonness claims were subject to the six-year limitations period in 6-2-34(1) of the Alabama Code. In IRMCO, former employees sued Arvin, their former employer, along with a number of their co-employees, alleging that they had suffered injuries as a result of their exposure to toxic chemicals they used while employed at Arvin...
Cases Released November 14, 2008
Posted on November 14, 2008From the Alabama Court of Civil Appeals: In the Matter of Anonymous, a minor Smith v. Smith Stewart v. Bradley Evans v. First National Bank of Jasper Darby v. Schley Vulcan Lands, Inc. v. Surtees From the Supreme Court of Alabama: Carr, et al. v...
Appeal Dismissed Because Rule 54(b) Certification Was Improper
Posted on November 14, 2008In Hammock v. Wal-Mart Store, Inc., [Ms. 1070939] (Ala. Nov. 7, 2008), the Alabama Supreme Court dismissed the appeal because it determined that a Rule 54(b) certification was improper.In Hammock, the plaintiff filed a wrongful death suit against Wal-Mart and one of its employees after the plaintiff's decedent was killed by the Wal-Mart employee when the employee struck the decedent with his car while returning from lunch...
Appeal Of Circuit Court's Order Affirming Probate Court Dismissed Because Appeal to Circuit Court Was Untimely
Posted on November 14, 2008In Williams v. Lollar, [Ms. 2070282] (Ala. Civ. App. Nov. 7, 2008), the probate court entered a judgment on a will contest. The appellant filed a post-judgment motion, whcih was denied by operation of law. After the motion was denied by operation of law pursuant to Rule 59...
Void Judgment Will Not Support An Appeal
Posted on November 14, 2008In M.P. v. C.P., [Ms. 2070644] (Ala. Civ. App. 2070644), the Court of Civil Appeal applied the well settled rule that a void judgment will not support an appeal. The juvenile court issued a custody order but, on appeal, the father argued that the circuit court, not the juvenile court, had jurisdiction...
Rule 60(b) Motion Is Not A Substitute For An Appeal
Posted on November 14, 2008In D.L.L. II v. B.J., [Ms. 2070891] (Ala. Civ. App. Nov. 7, 2008), the Court of Civil Appeals reviewed the denial of a Rule 60(b) motion. First, the Court reversed the denial of a Rule 60(b)(4) motion because the Court had previously held that the order was void for lack of jurisdiction...
Recusal-Based 60(b)(6) Motion Late Where Moving Party Obtained Underlying Document Six Years Earlier
Posted on November 11, 2008A defendant found no relief from judgment under Rule 60(b)(6) where he had obtained the document supporting his plea for relief six years before he filed his motion. Price v. Clayton, Nos. 2070728, 2070755 (Ala. Civ. App. Oct. 31, 2008). The trial court’s denial of the recusal-based 60(b)(6) motion was affirmed...
Late Administrative Appeal Deprived Circuit Court of Jurisdiction
Posted on November 09, 2008The State was late in appealing to circuit court from the decision of an administrative law judge. The circuit court therefore never acquired jurisdiction over the case. A subsequent appeal to the Court of Civil Appeals was dismissed as being from a void judgment...
Cases Released November 7, 2008
Posted on November 07, 2008From the Alabama Court of Civil Appeals: D.L.L. v. B.J. M.P. v. C.P. Dabbs v. Four Tees, d/b/a United True Value J.B. v. DeKalb County Department of Human Resources City of Dothan v. McCleskey McCall v. Alabama State Personnel Board L.A.C. v. T.S.C. and St...
Appeal From Partial Summary Judgment Ordering Injunction Dismissed
Posted on November 07, 2008In Martin v. Phillips, No. 2070351 (Ala. Civ. App. Oct. 24, 2008), Phillips asserted claims against Martin for trespass, nuisance and taking of riparian rights. Pursuant to ARCP 54(b), the trial court court certified as final the order in which it granted summary judgment in favor of Phillips on his riparian rights claim and issued an injunction; the summary judgment order acknowledged that the trial court did not decide Phillips's request for damages under the riparian rights claim...
Court Reviews Fair Dismissal Act Decision De Novo
Posted on November 06, 2008In this appeal from a Fair Dismissal Act proceeding in which employees of Bishop State Community College challenged their terminations on procedural grounds, the Alabama Court of Civil Appeals reviewed de novo the decision of the hearing officers in the administrative proceeding...
"Republican Shaw wins Alabama Supreme Court"
Posted on November 05, 2008According to this article from the AP via al.com, Greg Shaw won the race for Justice See's seat on the Alabama Supreme Court with 50.4% of the vote. This means that Republicans will continue to hold an 8-1 majority after Juste See leaves the bench...
Cases Released October 31, 2008
Posted on October 31, 2008From the Alabama Court of Civil Appeals: Price v. Clayton J.L.P. v. L.A.M. McConico v. State of Alabama American Heritage Life Insurance Company v. Blackmon Hokes Bluff Welding and Fabrication v. Cox Krawczyk v. State Public Department of Public Safety Gold Kist, Inc...
Court Decides Issue of First Impression for Lenders
Posted on October 29, 2008Writing for the Alabama Supreme Court on an issue of first impression, Justice See held in Flying J Fish Farm et al. v. Peoples Bank of Greensboro, No. 1061833 (Ala. Oct. 24, 2008), that a lender does not owe a no duty to its borrower to make certain that the project in which the borrower invests is sufficiently feasible to allow repayment of the loan...
Cases Released October 24, 2008
Posted on October 24, 2008From the Supreme Court of Alabama: Ex parte Alabama Department of Transportation, Petition for Writ of Mandamus; In re: Russell Petroleum, Inc. v. Alabama Department of Transportation Furrow v. Helton Ex parte N.J.J., Petition for Writ of Certiorari to the Court of Civil Appeals; In re: N...
Rule 54(b) Certification Inappropriate Where Claims Are Intertwined
Posted on October 22, 2008In North Alabama Electric Cooperative v. New Hope Telephone Cooperative, the Alabama Supreme Court dismissed a Rule 54(b) interlocutory appeal because the claim for common law indemnity that was adjudicated by the trial court was intertwined with the claim for contractual indemnity that was still pending before the trial court...
Appeal Dismissed as from Nonfinal Judgment Where Claims Remain Pending in the Trial Court
Posted on October 22, 2008In James v. Rane, released by the Alabama Supreme Court on October 17, the court dismissed the appeal as from a nonfinal judgment where claims remained pending in the trial court.The plaintiffs in this title dispute asserted a number of claims, including declaratory judgment, trespass, trespass to chattel, negligence, wantonness, inflication of emotional distress, and the tort of outrage...
Cases Released October 17, 2008
Posted on October 17, 2008From the Alabama Court of Civil Appeals: McCormick v. Ethridge Chancellor v. White Darnall, et al. v. Hughes, et al. Norandal U.S.A., Inc. v. Graben From the Supreme Court of Alabama: Ex parte Bama Concrete and Edwards, Petition for Writ of Mandamus; In re: Mims v...
Eleventh Circuit Judge Anderson to take senior status
Posted on October 16, 2008According to this article in the Atlanta-Journal Constitution, Eleventh Circuit Judge R. Lanier Anderson, III will take Senior Status at the end of January. So, the next President will have a vacancy on the Eleveth Circuit bench to fill.
In absence of evidence in record, trial court's judgment is presumed to be supported by the evidence
Posted on October 16, 2008In Prescott v. Prescott, [Ms. 2070638] (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals affirmed the trial court's judgment on a child custody modification issue. The mother appeal, but, the record did not contain a transcript, a statement of the evidence under Ala...
Failure to raise argument to trial court precludes consideration on appeal
Posted on October 16, 2008In Prescott v. Prescott, [Ms. 2070638] (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals refused to consider an argument that the trial court used an improper standard on a child custody determination. The court refused to consider the argument because it was not raised in the trial court...
Appellate courts do not have jurisdiction over claims for which no appeal has been filed
Posted on October 16, 2008In two cases, Hendricks v. KW Plastics, Inc., [Ms. 2070324] (Ala. Civ. App. Oct. 10, 2008), and Williams v. Moore, [Ms. 2070284] (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals refused to consider arguments where the arguments related to claims from which no appeal had been filed...
Pro se appellant subject to rules requiring citation to authorities
Posted on October 16, 2008In Hendricks v. KW Plastics, [Ms. 2070324], (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals refused to consider an argument because it was not supported by sufficient citations to the law. The fact that the appellant was acting pro se did not change the result...
Trial court must order mediation if requested by a party
Posted on October 16, 2008In Ex parte Morgan County Commission, [Ms. 1071545] (Ala. Oct. 10, 2008), the County Commission filed a motion requestiong mediation, but the trial court denied the motion. Citing Ala. Code sec. 6-6-20(b)(2) and Rule 2 of the Alabama Court Mediation Rules, the Alabama Supreme Court held that a trial court erred by not ordering mediation when a party requested mediation: "Although a trial court has discretion as to whether to stay the proceedings during mediation, the trial court has to order mediation upon the request of a party...
Cases Released October 10, 2008
Posted on October 13, 2008From the Alabama Court of Civil Appeals: Prescott v. Prescott Jenkins v. State Farm Mutual Automobile Insurance Company Progressive Specialty Insurance Company v. Wilkerson Mousseau v. City of Daphne Board of Zoning Adjustments Hendricks v. KW Plastics, Inc...
Abuse of Discretion Applies to Evidentiary Rulings at Summary Judgment
Posted on October 10, 2008The Alabama Supreme Court reviews motion for summary judgment de novo; however, when the Court considers whether evidence offered in support of or in opposition to a summary judgment motion will be admissible at trial so that the court may consider it at the summary judgment stage, the Alabama Supreme Court applies the abuse of discretion standard to these evidentiary rulings...
Supreme Court Reviews Issue not Briefed
Posted on October 10, 2008In Ex parte Auburn University, No. 1070174 (Ala. Oct. 3, 2008), the Alabama Supreme Court considered whether an exception to the sovereign immunity defense applied in the case even though the plaintiffs did not raise the issue in their writ petition concerning the denial of a summary judgment motion...
Evidence Must Show that Trial Court Ruling Injuriously Affected Substantial Rights
Posted on October 10, 2008In Van Voorst v. Federal Express Corp., No. 105077 (Ala. October 3, 2008), the Alabama Supreme Court refused to reverse a trial court’s denial of the plaintiff’s post-judgment motion without a hearing because the plaintiff did not present evidence that established that her substantial rights were injuriously affected...
Information on Supreme Court Candidates
Posted on October 07, 2008Justice See's seat on the Alabama Supreme Court will be filled in the election this November. Running for the office are Democrat Deborah Bell Paseur and Republican Greg Shaw. For a short biography of the candidates, follow the link to an article entitled "Bio information on Ala...
Cases Related on October 3, 2008
Posted on October 03, 2008From the Alabama Court of Civil Appeals: T.R. v. R.C. North Clarke Water Authority v. Robert Dockery C. Wayland Blake v. John L. Stinson Dagmar Tiller v. YW Housing Partners, Ltd. Brenda Elaine Hobson Williams v. Joseph Davis Hobson Matthew's Masonry Company v...
Lack of Express Postjudgment Ruling Leads to Automatic Denial and Late Appeal
Posted on October 01, 2008The trial court held a hearing but “did not expressly rule” on a father’s postjudgment motion. Under Rule 59.1, that motion was consequently denied by operation of law 90 days after its filing. An appeal lodged 43 days after the automatic denial was late...
"No Bright Line" Determines When Mandamus Will Be Treated As Appeal; Late "Enlargement" of Judgment Was Not "Correction" Under Rule 60(a)
Posted on September 30, 2008The Court of Civil Appeals treated a petition for mandamus as an appeal from the denial of a Rule 60(b)(4) motion for relief from a void order. Weaver v. Weaver, No. 2070778 (Ala. Civ. App. Sept. 26, 2008). Moreover, the trial court’s late attempt to substantively revise its earlier judgment was not a clerical “correction” under Rule 60(a) that could be made after the time for ruling on post-judgment motions had expired...
Delegating Division of Assets Made Divorce Judgment Non-Final
Posted on September 30, 2008A divorce judgment was not final where it delegated to “appropriate” government agencies how the husband’s retirement benefits would be divided. Verren v. Verren, No. 2061054 (Ala. Civ. App. Sept. 26, 2008). The parties’ appeals from that judgment were dismissed for lack of appellate jurisdiction...
Cases Released September 26, 2008
Posted on September 26, 2008From the Alabama Court of Civil Appeals: Weaver v. Weaver K.A.P. v. D.P. and C.P. Montgomery County Department of Human Resources v. C.R. and B.R. Smith v. Smith Thompson v. Colsa Corporation Ravenel v. Burnett Alabama Department of Public Safety v. Barbour Leonard v...
Alabama Supreme Court Provides Detailed Look at Reasonable Reliance Standard
Posted on September 24, 2008In AmerUs Life Ins. Co. v. Smith, the Alabama Supreme Court reversed a $6,500,000 verdict in favor of the plaintiff on his fraud claim and provided a helpful discussion of the reasonable reliance standard. In AmerUs, the Smiths sued AmerUs Life Insurance Company alleging fraud in connection with the sale of a life insurance policy...
Court of Civil Appeals Discusses Ore Tenus Standard of Review
Posted on September 22, 2008In Baldwin v. Panetta, released September 19, 2008, the Court of Civil Appeals discussed the ore tenus standard of review. In Baldwin, the plaintiff builders appealed from a judgment in favor of the defendant owners. Following a two-day bench trial, the circuit court entered a judgment in favor of the owners on the builders' breach of contract claim and on the owners' breach of contract and fraud counterclaims...
Another Appeal Dismissed for Lack of SJIS Input
Posted on September 22, 2008The appellants in Bolden v. Wise Alloys, LLC, released September 19, 2008, became the most recent to see an appeal dismissed because the judgment was not input into SJIS. As both the Alabama Supreme Court and the Alabama Court of Civil Appeals have pointed out, a judgment is not final unless it is input into the State Judicial Information System ("SJIS")...
Cases Released September 19, 2008
Posted on September 19, 2008From the Alabama Court of Civil Appeals: Bolden v. Wise Alloys, LLC Baldwin and Kelly, d/b/a Baldwin Construction Company v. Panetta
Motion to set aside default judgment may be denied by operation of law where motion is not properly supported
Posted on September 18, 2008In Carroll v. Williams, [Ms. 1060832], (Ala. Sept. 12, 2008), the Alabama Supreme Court held that "[b]ecause Carroll has failed to satisfy his initial burden under Kirtland, we wil not hold the trial court in error for allowing Carroll's motion to set aside the default judgment to be denied by operation of law without having applied the Kirtland analysis...
Non-Party lacks standing to appeal
Posted on September 18, 2008In McCollum v. Keating, [Ms. 2061182], (Ala. Civ. App. Sept. 12, 2008), the Court of Civil Appeals dimissed an appeal by a non-party, finding that the non-party lacked standing.Pursuant to a protective order entered by the trial court, non-party appellant McCollum was required to store a wrecked vehicle...
Rule 60(b) motion is not a substitute for a Rule 77(d) extension
Posted on September 16, 2008When a party is not notified of an appealable order, the only way to extend the time to appeal is by a Rule 77(d) extension, not a Rule 60(b) motion. In Gullett v. Gullett, [Ms. 2070007] (Ala. Civ. App. Sept. 12, 2008), the Court of Civil Appeals dismissed an appeal as untimely where the appellant incorrectly filed a Rule 60(b) motion for relief from judgment instead of seeking a Rule 77(d) extension...
Untimely Appeal Dismissed
Posted on September 15, 2008The pitfalls of Rule 59.1 are on display in Scott v. Lenoir, [Ms. 2040891] (Ala. Civ. App. Sept, 12, 2008), and an appeal was dimsissed as untimely.In Scott, the appellant timely filed his post-judgment motions, but the trial court did not rule within 90 days...
Cases Released September 12, 2008
Posted on September 15, 2008From the Alabama Court of Civil Appeals: T.B. v. Cullman County Department of Human Resources Ex parte Ferguson, Petition for Writ of Mandamus; In re: Ferguson v. Ferguson Corwin v. Corwin Swann v. Regions Bank and Barnett Burlington Insurance Company v...
Ground Stated in Motion for New Trial Colors Standard of Review
Posted on September 14, 2008In Beauchamp v. Coastal Boat Storage, LLC et al., No. 1061515 (Ala. Sept. 5, 2008), the Supreme Court held that when a plaintiff asserts as the sole ground for a motion for new trial that the verdict is against the great weight or preponderance of the evidence, a trial court order granting the motion for new trial, “’will be reversed for abuse of discretion where on review it is easily perceivable from the record that the jury verdict is supported by the evidence...
Refusal to Issue Preliminary Injunction is Appealable Order
Posted on September 14, 2008A trial court's refusal to issue a preliminary injunction is an appealable order. Under Rule 4(a)(1)(A), a party “can appeal from ‘any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or to modify an injunction...
When Court Says No Jurisdiction, It Means It
Posted on September 12, 2008When a trial or appellate court finds that it lacks subject matter jurisdiction over a matter, the case is over. Period. The trial court cannot allow a party to correct the jurisdictional flaw by amending the complaint. The court must dismiss the action; all rulings that the trial court enters in the matter are void...
No "Exceptional Circumstances" Justified Granting Motion Under Rule 60(b)(6); Appeals Did Not Preclude Timely 60(b)(1) Filing
Posted on September 10, 2008A father’s error in appealing from a void judgment in a custody dispute did not raise “exceptional circumstances” that would warrant granting his motion under Rule 60(b)(6). Nor did the parties’ cross-appeals prevent the father from filing a timely Rule 60(b)(1) motion...
Employer Fails to Show Good Cause for Late Petition, Appeals From Non-Final Order
Posted on September 10, 2008The Court of Civil Appeals rejected an employer’s bid to reverse a workers’ compensation award in two consolidated proceedings. The employer’s petition for mandamus was denied as late — the employer having not shown “good cause” for its delay in filing the petition...
Will Contest Not Final Where Trial Court Reserved Jurisdiction on Pending Motions
Posted on September 10, 2008A judgment disposing of a will contest was not final where the trial court reserved jurisdiction on pending motions, and had not adjudicated two claims in the defendant’s “Motion for Affirmative Relief.” The appeal was dismissed for lack of jurisdiction...
Pending Contempt Motion Made Custody Modification Nonfinal
Posted on September 09, 2008A judgment modifying custody was not final where it did not dispose of the mother’s motion to hold the father in contempt. The mother’s appeal from the modification order was dismissed for lack of jurisdiction. Butler v. Phillips, No. 2070488 (Ala...
Pending Contempt Motions Make Custody Modifications Nonfinal
Posted on September 09, 2008Judgments modifying child custody in two separate cases were not final where they did not dispose of pending motions to hold one parent in contempt. Appeals from the modification orders were dismissed for lack of jurisdiction. Butler v. Phillips, No...
Cases Released September 5, 2008
Posted on September 08, 2008From the Alabama Court of Civil Appeals: Brunson v. Lucas Folsom v. Stagg Run Development, LLC, et al. Miller v. Miller From the Supreme Court of Alabama: Ex parte Burgess, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Burgess v...
Cases Released August 29, 2008
Posted on August 29, 2008From the Supreme Court of Alabama: Ex parte Griffin, Petition for Writ of Mandamus; In re: Howard v. Mac Equipment Company, Inc., et al. Bon Aventure, L.L.C., and Staggers v. Craig Dyas L.L.C. and Dyas Carlton v. Hollon From the Alabama Court of Civil Appeals: Butler v...
Mandamus is not a substitute for an appeal
Posted on August 29, 2008In Ex parte A.S., [Ms. 1071104] (Ala. Aug. 15, 2008), the Alabama Supreme Court dismissed a petition for writ of mandamus because the appropriate remedy was by way of appeal.The juvenile court granted custody of a child to the great grandmother...
Appeal from non-final judgment dismissed
Posted on August 29, 2008The Court of Civil Appeals reviewed the issue of its jurisdiction ex mero motu and dismissed the appeal where there were claims still pending in the trial court. Gatlin v. Joiner, [Ms. 2070206] (Ala. Civ. App. Aug. 22, 2008). In its decision, the court addressed the effect of claims being left out of the charge given to the jury...
Appeal is from denial of Rule 60 motion, not underlying judgment
Posted on August 29, 2008In Djibrine v. State Farm Mut. Auto. Ins. Co., [Ms. 2070518] (Ala. Civ. App. Aug, 22, 2008), the Court of Civil Appeals reversed the Circuit Court's dismissal of an appeal from the district court as untimely. The district court entered a default judgment against Djibrine and, several months later, he moved to set aside the default pursuant to Rule 60(b)...
Claim for double-compensation penalty in workers' compensation is not subject to Rule 59
Posted on August 29, 2008The Supreme Court answered the question of first impression of whether a claim for the double- compensation penalty of Ala. Code 25-5-8(e) is subject to the time restrictions of Rule 59. The Court held that, because it is a penalty distinct from the underlying judgment, it is not...
Appeal dismissed where there was still a claim for punitive damages pending
Posted on August 29, 2008In Horn v. Brown, [Ms. 1061656] (Ala. Aug. 22, 2008), the Alabama Supreme Court dismissed an appeal as being from a non-final judgment where there remained a pending claim for punitive damages.The plaintiff sued the defendant seeking a portion of a settlement of a civil action and sought compensatory and punitive damages...
Cases Released August 22, 2008
Posted on August 24, 2008From the Supreme Court of Alabama: Ex parte McKenzie Oil Company, Inc. and Ex parte Heathcock, Petitions for Writ of Mandamus; In re: Franklin v. Heathcock and McKenzie Oil Company, Inc. Ex parte Tahsin Industrial Corporation, U.S.A., Petition for Writ of Mandamus; In re: Clanton v...
Reaction to United States Supreme Court's Decision in Hall Street
Posted on August 17, 2008This spring, in Hall Street Associates, LLC v. Mattel, the United States Supreme Court held that the grounds enumerated in the Federal Arbitration Act are the exclusive grounds for vacating, modifying, or correcting an arbitratin award and cannot be expanded, even by agreement of the parties...
Court of Civil Appeals Considers Whether Failure to Serve Brief Warrants Dismissal of an Appeal
Posted on August 17, 2008M.B. v. R.P and P.P considered the appropriate consequences for the failure to serve an appellate brief as indicated on the certificate of service and concluded that, under the circumstances of that case, dismissal of the appeal was not called for...
Judgment Not Entered Into SJIS Will Not Support an Appeal
Posted on August 17, 2008In Gilbreath v. Harbour, released August 15, the Alabama Court of Civil Appeals dismissed an appeal from an order because it was not entered into SJIS.On September 13, 2007, the trial court entered a boundary-line judgment in favor of the Harbours...
Cases Released August 15, 2008
Posted on August 15, 2008From the Alabama Court of Civil Appeals: Campbell v. Davison Montgomery County Board of Education v. Addison Stout v. Cumse and Colbert County M.B. v. R.P. and P.P. et al. Scheer Homes, Inc. v. Hills and Hills Real Estate Gilbreath v. Harbour K.D.H. v...
Court Applies De Novo Review When Parties Stipulate To Relevant Facts
Posted on August 12, 2008In Yeager v. Winstead, No. 2060583 (Ala. Civ. App. August 8, 2008), a per curiam opinion, the plaintiff appealed from a trial court order denying her request for postjudgment interest on a lump sum alimony judgment from which the plaintiff appealed...
Cases Released August 8, 2008
Posted on August 08, 2008From the Alabama Court of Civil Appeals:Ex parte City of Birmingham, Petition for Writ of Certiorari to the Jefferson Circuit Court; In re: Dill v. City of BirminghamLynn v. Wade Stuart Family Enterprises, L.P. and StuartFord v. FordYeager v. Winstead, as personal representative of the estate of Winstead From the Supreme Court of Alabama:Ex parte Moses, Petition for Writ of Certiorari to the Court of Civil Appeals; In re: Denson v...
Cases Released on August 1, 2008
Posted on August 01, 2008From the Alabama Court of Civil Appeals:Smith v. Smith and Flowerwood Nursery, Inc.Advantage Sales of Alabama, Inc. v. ClemonsCredigy Receivable, Inc. v. DayFarnell v. FarnellHollinger v. Wells, d/b/a Wells Construction From the Supreme Court of Alabama:Ex parte Phil Owens Used Cars, Inc...
Eleventh Circuit Adopts "Last Served Defendant" Rule for Removal From State Court
Posted on July 30, 2008In Bailey v. Janssen Pharmaceutica, Inc., Case No. 07-12258 (11th Cir. July 29, 2008), the Eleventh Circuit Court of Appeals answered a previously unsettled question regarding removals from state court. The Eleventh Circuit adopted the "last served defendant" rule, meaning that each defendant has 30 days from the date of service to remove the case to federal court, even in the time to remove for other defendants has already run...
Supreme Court Reminds of the Standard of Review Applicable to Intermediate Appellate Courts
Posted on July 28, 2008In Ex parte Singleton, released by the Alabama Supreme Court on July 25, 2008, the court reminds us of the standard of review applicable to intermediate appellate courts. Quoting Ex parte Fort James Operating Co., 895 So.2d 294, 296 (Ala. 2004), the court stated:On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court...
54(b) Certification Made After Notice of Appeal Filed is a Nullity
Posted on July 28, 2008In Pike v. Reed, released by the Alabama Court of Civil Appeals on July 25, the court held that a Rule 54(b) certification made after a notice of appeal was filed was a nullity. The trial court entered an order on November 5, 2007 which determined liability, but did not determine the relief to which the plaintiff was entitled...
Cases Released July 25, 2008
Posted on July 28, 2008From the Alabama Court of Civil Appeals:Decker v. DeckerBoone, et al. v. Birmingham Board of EducationPike v. ReedWalton v. Beverly Enterprises-Alabama, Inc., d/b/a Beverly Meadowood Health & Rehabilitation From the Supreme Court of Alabama:Ex parte Wolter, Petition for Writ of Certiorari to the Court of Civil Appeals; In re: Weinrib, in his official capacity as Jefferson County Tax Assessor v...
Appeal Fron Non-Final Order Dismissed
Posted on July 23, 2008In Morrison v. Morrison, Ms. 2070136 (Ala. Civ. App. July 18, 2008), the Court of Civil Appeals dismissed an appeal sua sponte for lack of jurisdiction. The court found that the order on appeal did not dispose of all claims in the case, and there was no Rule 54(b) certification...
Lack of Standing Requires Dismissal of Appeal
Posted on July 23, 2008In Marshall v. Cook, Ms. 2070184 (Ala. Civ. App. July 18, 2008), the Court of Civil Appeals sua sponte dismissed an appeal when it determined that the appellant lacked standing.In Marshall, a father filed suit seeking an accounting for a conservatorship established for his son...
Trial Court Erred By Not Setting Aside Default Where Party Missed Hearing Due to Hospitalization
Posted on July 23, 2008In Stanfield v. Stanfield, Ms. 2061090 (Ala. Civ. App. July 18, 2008), the Court of Civil Appeals held that the trial court erred by failing to set aside a default judgment where a party missed a final hearing due to hospitalization.The default judgment was entered in this divorce proceeding after the husband's counsel withdrew and the husband missed the final hearing...
Cases Released July 18, 2008
Posted on July 18, 2008From the Alabama Court of Civil Appeals:M.B.L. v. G.G.L.Marshall v. CookMorrison v. MorrisonGreener v. KilloughState Department of Revenue v. Wells Fargo Financial Acceptance Alabama, Inc., et al.ArvinMeritor v. JohnsonStanfield v. StanfieldFranklin v...
Cases Released July 11, 2008
Posted on July 11, 2008From the Supreme Court of Alabama:Ex parte Holbert, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Holbert v. State of AlabamaMoon v. PillionEx parte State of Alabama, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Harris v...
Court of Civil Appeals Reaffirms that Rule 60(b) Is Not a Substitute for an Appeal
Posted on July 09, 2008In Hobbs v. Heisey, No. 2070085, the Alabama Court of Civil Appeals reiterated the appropriate uses of Rule 60(b), noting that it cannot be used as a substitute for an appeal from a final judgment. In Hobbs, the husband sought to appeal a March 2006 divorce decree...
Cases Released on July 3, 2008
Posted on July 09, 2008From the Alabama Court of Civil Appeals:Mills v. DaileyHobbs v. HeiseyR.W. v. G.W. & S. W.From the Supreme Court of Alabama:Bob Riley, et al. v. Luther S. Pate IV
"Alabama court sides with Riley in budget dispute"
Posted on July 03, 2008In Riley v. Pate, Ms. 1071003 (Ala. July 3, 2008) , the Alabama Supreme Court held that a taxpayer did not have standing to bring suit challenging where the proceeds of the State's judgment against Exxon in the gas royalty dispute would be placed. For more information, click on the link to the article entitled "Alabama court sides with Riley in budget dispute" from the AP via al...
Trial Court Has No Jurisdiction to "Reconsider" Denial of Post-Judgment Motion; Must Hold Hearing on Motion for Remittitur
Posted on July 01, 2008A circuit court loses jurisdiction after denying a post-judgment motion. The court thus cannot “reconsider” its denial. Moreover, a circuit court errs by not holding a hearing on a motion to reduce a punitive award. Southeast Environmental Infrastructure, L...
"Alabama Supreme Court rules that George Bowman can serve on Jefferson County Commission through November"
Posted on July 01, 2008In Working v. Jefferson County Election Commission, Ms. 1070850 (Ala. June 30, 2008) , the Alabama Supreme Court invalidated a special election to fill a vacant seat on a county commission, and instead held that the Governor's appointee should serve until the election this Fall...
Premature Post-Judgment Motion and Notice of Appeal Became Effective When Target Orders Became Final
Posted on June 30, 2008A father filed a post-judgment motion before the circuit court entered its judgment. This motion “quickened” and became effective when the trial court did enter judgment. Similarly, the father’s premature notice of appeal became effective when his post-judgment motion was denied...
Appeal Is "Filed" When Received By Circuit Clerk -- Not When Mailed
Posted on June 30, 2008An appeal is “filed” when the circuit clerk receives the notice of appeal, not when a party mails it. Because the clerk received the notice after the time for filing an appeal had elapsed, the appeal was late and was consequently dismissed D...
Cases Released June 27, 2008
Posted on June 27, 2008From Alabama Court of Civil Appeals:T.T.T. v. R. H. and J.R.H.ArvinMeritor, Inc. v. HandleyW.B.G.M. v. P.S.T.C.J. v. Marion County Department of Human ResourcesMontgomery Ford Lincoln Mercury, Inc., et al. v. HallD.T. v. State of Alabama From the Supreme Court of Alabama:Southeast Environmental Infrastructure, L...
United States Supreme Court cuts Exxon Valdez punitive damage award
Posted on June 25, 2008In Exxon Shipping Co. v. Baker, No. 07-216 (June 25, 2008), the United States Supreme Court cut the punitive damage award against Exxon arising out of the Exxon Valdez oil spill from $2.5 billion to approxinmately $500 million. Justice Souter authored the 5-3 majority opinion...
Payment of workers' compensation benefits pursuant to foreign state's statute does not toll time to bring Alabama workers' compensation claim
Posted on June 25, 2008In Ex parte Morris, Ms. 1070384 (Ala. June 20, 2008) , in a question of first impression, the Alabama Supreme Court held that the payment of benefits pursuant to another states workers' compensation statute does not toll the time to bring an Alabama workers' compensation claim...
Alabama Supreme Court clarifies procedure for appealing decisions of an arbitrator
Posted on June 25, 2008In Horton Homes, Inc. v. Shaner, Ms. 1061659, 1061741 (Ala. June 20, 2008), the Alabama Supreme Court attempted to clarify the procedure for appealing an arbitrator's decision. Specifically, in its Per Curiam opinion, the Court "address[ed] two aspects of that procedure, namely: (1) the time period for filing an appeal of an arbitration award, and (2) the role of the circuit court in reviewing that arbitration award...
"Law of the case doctrine" is not inflexible and does not prevent a court from revisiting issue of jurisdiction.
Posted on June 25, 2008In Bessemer Board of Ed. v. Tucker, Ms. 2070390 (Ala. Civ. App. June 20, 2008) , the Alabama Court of Civil Appeals addressed the application of the "law of the case" doctrine, and found that the doctrine is not inflexible. "The doctrine directs a court's discretion; it does not limit a court's power...
Cases Released June 20, 2008
Posted on June 20, 2008From the Alabama Court of Civil Appeals:Bessemer Board of Education v. TuckerT.G. v. Houston County Department of Human ResourcesWilliamson v. PruittC.D.H. and K.E.H. v. Marion County Department of Human ResourcesDean v. DeanJ.E. v. V.C.E. From the Supreme Court of Alabama:Ex parte Nathan Rodgers Construction, Inc...
"Alabama Supreme Court reverses decision in Hurricane Opal lawsuit"
Posted on June 20, 2008In Jones v. Alfa Mutual Ins. Co., Ms. 1060179 (Ala. June 13 2008), the Alabama Supreme Court reversed a trial court's ruling that Alfa did not act in bad faith in its handling of an insurance claim arising from Hurricane Opal in October 1995. The Supreme Court sent the case back for a trial on "abnormal" bad faith based on failure to investigate and breach of contract...
"Ala. judge OKs AstraZeneca fraud verdict"
Posted on June 20, 2008Judge Price of the Montgomery County Circuit Court upheld the fraud verdict obtained by the State against AstraZeneca in the Medicaid drug pricing suit. Judge Price upheld the compensatory damage award of $40 million and, pursuant to the statutory cap on punitive damages, cut the punitive damages from $175 million to $120 million, making the total verdict $160 million...
Writ of Mandamus Vehicle for Pendente Lite Review
Posted on June 19, 2008In Amberson v. Long, No. 2061191 Ala. Civ. App. (June 13, 2008), a mother appealed from an order modifying child custody. The father responded that “the order from which the mother appeals is a pendente lite custody order that will not support an appeal...
Specific Objection Must Immediately Follow Inadmissible Evidence
Posted on June 19, 2008The Alabama Supreme Court reiterated that the denial of a motion in limine does not preserve an objection to evidence for appellate review. In denying the motion, the trial court signals that it will rule on the matter if it arises at trial. To obtain appellate review of an evidentiary objection at trial, the party opposing the evidence must make "a timely objection ...
Cases Released June 13, 2008
Posted on June 16, 2008From the Alabama Court of Civil Appeals:Daniel v. PassmoreAmberson v. LongVaughn v. VaughnB.H. v. Marion County Department of Human ResourcesWebb, et al. v. City of DemopolisHall v. HallJ.W. v. N.K.M.Hall, et al. v. North Montgomery Materials, LLC, and KatsarskyTeam America of Tennessee v...
Certiorari Available to Review "Final" Administrative Decisions Under Fair Dismissal Act
Posted on June 10, 2008The common-law writ of certiorari is available to review administrative decisions under § 36-26-115 of Alabama’s Fair Dismissal Act, the Court of Civil Appeals held, even though that statute makes administrative decisions “final” and non-appealable...
Cases Released June 6, 2008
Posted on June 09, 2008From the Alabama Court of Civil Appeals:Lewis v. WhitlockT.V. v. B.S.South Alabama Skills Training Consortium, et al. v. Ford, et al. From the Supreme Court of Alabama:Murry v. City of Abbeville
Rule 60(a) Did Not Allow Trial Court to "Amend" Non-Final Judgment
Posted on June 04, 2008In Crutcher v. Williams, released May 30, 2008, the Alabama Supreme Court held that Rule 60(a) did not allow the trial court to simply "amend" a putative final judgment that failed to adjudicate cross claims. In the first installment of this medical malpractice case, the doctor defendant appealled from a judgment against him...
Three Cases Released Last Week Show the Consequences of Failing to Timely, Properly or Thoroughly Raise Legal Arguments
Posted on June 03, 2008Three different cases released last week show the importance of raising legal arguments early, thoroughly, and often in order to have those arguments considered on appeal. In Diggs v. Diggs, released by the Alabama Court of Civil Appeals, the court refused to consider the husband's argument that the trial court erred in awarding certain property to the wife because the argument lacked citation to the record or legal authority...
Alabama Court of Civil Appeals Offers Guidance Regarding the Time for Appeal of Arbitration Awards
Posted on June 03, 2008In Yayman v. FIA Card Services, N.A., released May 30, 2008, the Alabama Court of Civil Appeals further clarified the procedure for appeal of arbitration awards. In Yayman, the trial court entered an arbitration award on May 9, 2007 pursuant to Ala...
Cases Released May 30, 2008
Posted on June 02, 2008From the Alabama Court of Civil Appeals:Yayman v. FIA Card Services, N.A.Diggs v. DiggsChandler v. Virciglio From the Supreme Court of Alabama:City of Huntsville v. Stove House 5, Inc.Panayiotou v. JohnsonFort James Operating Company, Inc. v. StephensCrutcher v...
Appellate courts review judgments, not grounds
Posted on May 28, 2008In a special concurrence in Ramsey v. Ramsey, Ms. 2060661 (Ala. Civ. App. May 23, 2008), Judge Pittman provided a reminder as to the function of the appellate courts. In his special concurrence to the opinion affirming the trial court, Judge Pittman stated that he "write[s] specially to stress that the Alabama trial court's specification of one particular ground for its decision ...
Rule 54(b) certification improper, so appeal is dismissed
Posted on May 28, 2008The Court of Civil Appeals found that a Rule 54(b) certification was improper and thus dismissed the appeal in Owen v. Hopper, Ms. 2070016 (Ala. Civ. App, May 23, 2008) . In a property line dispute, the Court of Civil Appeals found that the judgment on the counterclaim which was certified as final was really a defense to the underlying tort claim...
Trial court not required to hold hearing on 60(b) motion where no hearing was requested
Posted on May 28, 2008In Kovakas v. Kovakas, Ms. 2050780, 2060228 (Ala. Civ. App. May 23, 2008), the Court of Civil Appeals rejected an argument that the trial court had erred by not holding a hearing on a Rule 60(b) motion because no hearing was requested. "When a party fails to request a hearing, 'to deny his motiin without a hearing [is] not error...
Home buyer not entitled to restitution from unlicensed builder; non-compliance with briefing rules does not necessarily defeat appeal
Posted on May 28, 2008In Fausnight v. Perkins, Ms. 1060171 (Ala. May 23, 2008), in a question of first impression, the Alabama Supreme Court held that a home buyer is not entitled to restitution of funds already paid to an unlicensed home builder solely on the basis that the builder was not licensed...
Supreme Court clarifies standard of review for appeal of injunction order
Posted on May 28, 2008In Holiday Isle, Inc. v. Adkins, Ms. 1070252 (Ala. May 23, 2008) , in an 8-1 decision, the Alabama Supreme Court clarified that, when facts are undisputed and it is a question of law, legal conclusions in injunction orders are reviewed under a de novo standard, and not whether the trial court exceeded its discretion...
Supreme Court affirms judgment for Hoover and Vestavia
Posted on May 28, 2008The Alabama Supreme Court recently heard oral arguments in Birmingham on a case brought by several businesses against the City of Hoover and the City of Vestavia for claims arising from the flooding of Patton Creek. In Royal Automotive, Inc. v. City of Vestavia and City of Hoover, Ms...
Cases Released on May 23, 2008
Posted on May 27, 2008From the Alabama Court of Civil Appeals:Kovakas v. KovakasRamsey v. RamseyS.A.N. v. S.A.N.Burgett v. BurgettR.S. v. R.G. and M.G.Owen v. Hopper, et al.A.K. v. N.B.Leftwich v. VansandtEx Parte Montgomery County Department of Human Resources and Alabama Department of Human Resources, Petition for Writ of Mandamus, (In re: The matter of D...
Lesser Known Standards of Review
Posted on May 21, 2008The Court used two lesser known standards of review in the opinions that it issued last week. In Ex parte Johnson, No. 1061762 (Ala. May 16, 2008), the Court discussed the standard of review applicable to a petition for a writ of prohibition...
Cases Released May 16, 2008
Posted on May 19, 2008From the Alabama Court of Civil Appeals:E.A. v. Calhoun County Department of Human ResourcesCalhoun v. BracknellM.A.J. v. S.F. From the Supreme Court of Alabama:Ex parte Johnson, et al., In re: Champion Home Builders Company, et al. v. JohnsonEdwards v...
Appeals From Non-Final and Void Judgments Lead to Triple Dismissal -- Appeals From Even Non-Final Judgments Divest Trial Court of Jurisdiction
Posted on May 13, 2008One appellant saw three appeals dismissed in a single decision from the Court of Civil Appeals. Busby v. Lewis, Nos. 2060998, 2060999, 2070151 (Ala. Civ. App. May 9, 2008). Two appeals were from nonfinal judgments that had left claims pending against other parties; while a third was from a void judgment entered after the first appeals were lodged — and thus after the trial court had lost jurisdiction of the case...
Judgment Which Did Not Address Issue Joined by Parties Was Not Final
Posted on May 13, 2008A circuit court’s judgment was not final, and would not support an appeal, where the judgment did not address the husband’s request to end his obligation to maintain life insurance for his ex-wife’s benefit. Hennaing v. Hennaing, No...
Circuit Court Could Not Reconsider Denied Post-Judgment Motions; Appeal From Later Order Was Untimely
Posted on May 13, 2008The circuit court lost jurisdiction once it denied an employer’s post-judgment motions under Rules 59 and 60. That denial triggered the 42 days in which the employer had to appeal. The circuit court had no power to reopen, reconsider, and again rule on the employer’s motions...
Cases Released May 9, 2008
Posted on May 12, 2008From the Alabama Court of Civil Appeals:Ex parte Medical Licensure Commission of Alabama, In re: Morrison v. GurleyEx parte Plumbline Construction, In re: Quattlebaum v. Plumbline ConstructionA.R. v. State Department of Human ResourcesPepper v. BentleyR...
Rule 59.1 Renders Appeal from Probate Court Untimely
Posted on May 06, 2008In Morrison v. Phillips, released May 2, 2008, the Alabama Court of Civil Appeals dismissed an appeal from a probate court judgment as untimely filed by operation of Rule 59.1. In Morrison, the probate court entered a judgment of final settlement of the estate on January 11, 2007...
Motion to Reconsider the Denial of a Post-Judgment Motion a Nullity; Ruling Thereon Will Not Support an Appeal
Posted on May 06, 2008In N.F.N. and L.C.N. v. J.M.M.J, released on May 2, 2008, the Alabama Court of Civil Appeals dismissed an appeal from a judgment awarding custody because the order appealed from purported to rule on a motion to reconsider the denial of a postjudgment motion...
Cases Released May 2, 2008
Posted on May 04, 2008From the Supreme Court of Alabama:Ex parte Abrams, In re: Abrams v. State of AlabamaBoard of Trustees of the University of Alabama, for its division, University of Alabama Hospital, and Gadsden Regional Medical Center v. American Resources Insurance Company et al...
Alabama Supreme Court clarifies scope of post-judgment discovery in connection with review of punitive damages
Posted on April 29, 2008In Ex parte Vulcan Materials, [Ms. 1051184] (Ala. April 25, 2008) , the Alabama Supreme Court clarified the allowable scope of post judgment discovery in connection with a review of punitive damages, including the scope of discovery regarding a defendant's financial position...
"Alabama Supreme Court releases data: Fewer cases, decisions take longer"
Posted on April 28, 2008The Birmingham News has an interesting article about recent statistics on the caseload at the Alabama Supreme Court. Click the link for the article entitled "Alabama Supreme Court releases data: Fewer cases, decisions take longer."
Mandamus Proper to Review Fictitious Party Issue
Posted on April 25, 2008In Ex parte Nationwide Ins. Co., No. 1061708 (Ala. April 18, 2008), the Alabama Supreme Court confirmed that, “an appeal is not an adequate remedy to review the defense, ‘[i]n a narrow class of cases involving fictitious parties and the relation-back doctrine’ that a claim is barred by the statute of limitations...
Law of the Case Doctrine Not Obligatory
Posted on April 25, 2008In deciding whether to apply the law of the case doctrine in a case that has been appealed multiple times, the appellate court should consider the purpose of the rule and the circumstances surrounding the initial appellate decision in the case. Swafford v...
Use Common Law Certiorari for Review of Personnel Board Decision
Posted on April 25, 2008“’The proper method of reviewing circuit court decisions involving appeals from the Jefferson County Personnel Board is by common-law petition for writ of certiorari.’ Ex parte Personnel Board of Jefferson County, 513 1029, 1031 (Ala...
Cases Related on April 25, 2008
Posted on April 25, 2008From the Alabama Court of Civil Appeals:2061121 - Walton v. Beverly Enterprises-Alabama, Inc., d/b/a Beverly-Meadowood Health & Rehabilitation, and Caroyln DisherFrom the Alabama Supreme Court:1070606 - Ex Parte Margaret Dabbs, Petition for Writ of Certiorari to the Court of Civil Appeals, (In re: Margaret Dabbs v...
Cases Released on April 25, 2008
Posted on April 25, 2008From the Alabama Court of Civil Appeals:2061121 - Walton v. Beverly Enterprises-Alabama, Inc., d/b/a Beverly-Meadowood Health & Rehabilitation, and Caroyln DisherFrom the Alabama Supreme Court:1070606 - Ex Parte Margaret Dabbs, Petition for Writ of Certiorari to the Court of Civil Appeals, (In re: Margaret Dabbs v...
Presumption of Correctness for Mixed Questions of Law and Fact
Posted on April 24, 2008In Roberts v. Uni. of Alabama Hospital, No. 2070256 (Ala. Civ. App. April 18, 2008), a hospital lien action, the Alabama Court of Civil Appeals held that, “[a]ppellate courts properly apply a presumption of correctness to factual determinations of trial courts, even in the context of mixed questions of law and fact...
Petition for Writ of Mandamus Moot
Posted on April 21, 2008The concept of mootness applies to a writ of mandamus. “A case is moot when there is no real controversy and it seeks to determine an abstract question which does not rest on existing facts or rights. . . . This same principle holds with respect to petitions for writ of mandamus...
Cases Released April 18, 2008
Posted on April 18, 2008From the Supreme Court of Alabama:Ex parte Novartis Pharmaceuticals Corporation, In re: Alabama Medicaid Pharmaceutical Average Wholesale Price LitigationWhite Sands Group, L.L.C., Valentine, and Rolison v. PRS II, LLC, et al.Chris Myers Pontiac-GMC, Inc...
"Students Watch the Alabama Supreme Court in Action"
Posted on April 17, 2008The Alabama Supreme Court and the Alabama Court of Civil Appeals heard oral arguments today at Samford University in Birmingham. Here is a link to an article about the arguments entitled "Students Watch the Alabama Supreme Court in Action" from myfoxal...
Argument Challenging Post-Minority Support Calculation Could Not Be Raised for First Time on Appeal
Posted on April 16, 2008Where a husband challenged an award of post-minority support for the first time on appeal, his argument would not be entertained; the support judgment was therefore affirmed. Lollar v. Lollar, No. 2060863 (Ala. Civ. App. Apr. 11, 2008).The Court of Civil Appeals had a chance to practice its fundamentals in this straightforward divorce case...
Nunc Pro Tunc Order Could Not Revise Judgment to Cure Late Appeal
Posted on April 16, 2008A circuit court could not revise a judgment nunc pro tunc, so that the dates would retroactively cure a husband’s late appeal. Smith v. Smith, No. 2061150 (Ala. Civ. App. Apr. 11, 2008).Much of this case finds the Court of Civil Appeals visiting familiar ground, tracing a small tangle of post-judgment dates through Rule 59...
Voluntary Dismissal "Effective Automatically," Leaves Nothing to Appeal
Posted on April 16, 2008A voluntary dismissal left a would-be intervener with nothing to appeal from. Its motion to intervene was denied in action that was already “defunct”; and the appeal from that denial was consequently dismissed. Gallagher Basset Services, Inc...
Failure to Specify "Insufficient Evidence" in Trial Motions Removes This Ground for Reversal
Posted on April 15, 2008The Alabama Supreme Court clarified “the precision with which” insufficiency of the evidence must be stated in motions for judgment as a matter of law, in order to preserve that argument as a basis for reversal. Ex parte Dekle, No. 1051659 (Ala...
Document Not in Appellate Record Could Not Underpin Error
Posted on April 15, 2008The Court of Civil Appeals refused to find that a trial court had erred by supposedly failing to account for a document that was not included in the record on appeal. Beatty v. Beatty, No. 2060993 (Ala. Civ. App. Apr. 11, 2008). The trial court’s judgment, finding that a husband owed past-due alimony, was therefore affirmed...
Cases Released on April 11, 2008
Posted on April 14, 2008From the Alabama Court of Civil Appeals:Lollar v. LollarRugsdale v. Hyatt, Williamson, & WilliamsonBeatty v. BeattyA.S.H. v. State Department of Human ResourcesSmith, Sr. v. SmithEx parte Lynn Adams - Petition for Writ of Mandamus - (In re: Fleet Force, Inc...
Trial Court's Failure to Comply With Section 25-5-88 of the Alabama Code Results In Reversal and Remand
Posted on April 07, 2008Massey Chevrolet, Inc. v. Aderhold, released on April 4 by the Court of Civil Appeals, indicates the consequences of the trial court's failure to comply with section 25-5-88 in a workers' compensation case. In Aderhold, the parties entered into a settlement agreement regarding the plaintiff's worker's compensation calim...
Undue Delay in Filing an Amended Complaint Not An Exception to the Affirm for Any Reason Rule
Posted on April 07, 2008In Nettles v. White, released by the Alabama Court of Civil Appeals on April 4, 2008, the court determined that an appellate court may affirm on the basis of undue delay in filing an amended complaint even though that ground was not raised in the trial court...
"Alabama Supreme Court to hear appeal of Patton Creek flooding dispute in session at Samford University"
Posted on April 07, 2008The Alabama Supreme Court and the Court of Civil Appeals will hear oral arguments in a special session at the Leslie Wright Center at Samford University beginning at 9:00 a.m. on April 17, 2008. For a review of the cases which will be argued, follow the link to the article "Alabama Supreme Court to hear appeal of Patton Creek flooding dispute in session at Samford University" from the Birmingham News.
Cases Released on April 4, 2008
Posted on April 04, 2008"From the Alabama Court of Civil Appeals:"Russel v. WilsonKnight v. KnightNettles v. WhiteJackson v. State of AlabamaMassey Chevrolet, Inc. v. AderholdPine Grove Baptist Churhc, Inc., et al. v. Mitchell Carter, et al."From the Alabama Supreme Court:"Gilbert v...
Standard of Review in Boundary-Line Dispute Between Coterminous Landowners
Posted on April 01, 2008Jacks v. Taylor, released by the Alabama Court of Civil Appeals on March 28, 2008 provides a statement of the standard of review in a boundary-line dispute between coterminous landowers. A trial court's findings in a boundary-line dispute are afforded deferential review:Our standard of review in a boundary-line case is extremely deferential...
Absence of Rule 59 Motion Precludes Trial Court From Amending Judgment
Posted on April 01, 2008In Pierce v. American General Finance, Inc., released by the Alabama Supreme Court on March 28, the court examined the trial court's ability to amend a previous judgment in the absence of a Rule 59 motion, holding that it was without jurisdiction to do so...
Cases Released March 28, 2008
Posted on March 28, 2008From the Alabama Court of Civil Appeals:J.W. v. N.K.M.J.W.J., Jr. v. P.K.R. and P.H.R.E.S.R., Jr. v. Madison County Department of Human ResourcesBrooks v. BrooksJacks v. Taylor From the Supreme Court of Alabama:Ex parte Flowers, individually and d/b/a Roshell's Cafe and Deli, In re: Sanders v...
"House passes bill to require minimum qualifications for judges"
Posted on March 28, 2008The Alabama House of Representatives passed a bill that would require appellate judges to have 10 years of experience practicing law before they can serve on an Alabama appellate court. Click the link for an article on this bill titled "House passes bill to require minimum qualifications for judges" from the AP, via al...
Alabama Supreme Court and Court of Civil Appeals to hear oral arguments in Birmingham
Posted on March 25, 2008On April 17, 2008, the Alabama Supreme Court and the Court of Civil Appeals will hear oral arguments in Birmingham, Alabama. The arguments will be held from 9:00 a.m. to 12:00 noon at the Wright Center at Samford University, 800 Lakeshore Drive, Birmingham, Alabama 35229...
United States Supreme Court Hears Alabama Voting Rights Case
Posted on March 25, 2008The United States Supreme Court heard oral argument on a case arising out of Alabama involving voting rights. The dispute centers around the authority of the Governor to appoint someone to a vacant seat on a County Commission rather than have a special election...
Alabama Supreme Court can only review grounds accepted on certiorari
Posted on March 25, 2008The Alabama Supreme Court quashed a writ of certiorari in Ex parte State of Alabama Dept. of Revenue, [Ms. 1061766] (Ala. March 21, 2008) because it could not reach the issue presented. On certiorari, the State of Alabama Department of Revenue filed a petition for writ of certiorari asking the Supreme Court to reverse a prior case involving the same parties...
Failure to dispose of counterclaims defeats finality of judgment
Posted on March 25, 2008In Posey v. Mollohan, [Ms. 2060500] (Ala. Civ. App. March 21, 2008), the Court of Civil Appeals dismissed an appeal of a judgment for lack of jurisdiction due to the presence of pending counterclaims and defenses which sought affirmative relief. The parties to this case had a bench trial regarding the possession of two Tennessee Walking Horses...
Amended complaint filed pursuant to Ala. R. Civ. P. 78 defeats finality of judgment
Posted on March 25, 2008In Parris v. Prison Health Services, Inc., [Ms. 2061100] (Ala. Civ. App. March 21, 2008), the Court of Civil Appeals dismissed an appeal for lack of jurisdiction because of the presence of an amended complaint filed pursuant to Ala. R. Civ. P. 78.In Parris, the trial court granted the defendant's motion to dismiss the plaintiff's complaint for failure to state a claim without a hearing...
Untimely notice of appeal requires dismissal of appeal
Posted on March 25, 2008The rule that an untimely appeal must be dismissed required the dismissal of the appeal of a paternity action in J.B.C. v. P.H.R, [Ms. 2061131] (March 21, 2008). In an action to determine paternity, an appeal mustbe filed within 14 days of the order in issue; however, in this case, the putative father filed his appeal 21 days after the order...
Cases Related on March 21, 2008
Posted on March 24, 2008From the Alabama Court of Civil Appeals:Posey v. MollohanFuller v. FullerA.D.B.H. v. Houston County Department of Human ResourcesHubbard v. BentleyBrowning v. PalmerTonini and State Insurance Company v. CampagnaBrunner v. OrmsbyCalera Animal Hospital v...
Cases Released on March 21, 2008
Posted on March 24, 2008From the Alabama Court of Civil Appeals:Posey v. MollohanFuller v. FullerA.D.B.H. v. Houston County Department of Human ResourcesHubbard v. BentleyBrowning v. PalmerTonini and State Insurance Company v. CampagnaBrunner v. OrmsbyCalera Animal Hospital v...
Challenge of Arbitration Award Too Late
Posted on March 18, 2008The Alabama Supreme Court reversed an order vacating an arbitration award because the argument that the defendant offered in support of his motion to vacate came too late. To avoid the arbitration award, the defendant submitted that he should not have been compelled to arbitrate because he was not a party to the arbitration agreement...
Crutcher Opinion Reviews Plethora of Procedural Rules
Posted on March 16, 2008In Crutcher v. Williams, No. 1050893 (Ala. March 14, 2008), the Alabama Supreme Court remanded a case because the judgment from which the appeal was taken was not final. The Court asked the trial court, within fourteen days, either to certify the primary judgment as final under Rule 54(b) or to enter a judgment on the cross-claim in the case...
Judge Sam C. Pointer, Jr. Passes Away
Posted on March 15, 2008We are very saddened by the passing of Judge Sam C. Pointer, Jr. Judge Pointer passed away the morning of March 15, 2008 at the age of 73.Judge Pointer served as a United States District Court Judge for the Nothern District of Alabama for 30 years and rightfully earned the reputation as one of the nation's top jurists...
Cases Released March 14, 2008
Posted on March 14, 2008From the Alabama Court of Civil Appeals:BFI Waste Services, LLC v. PullumWalker v. WalkerLattimore v. LattimoreStokes v. Cottrell, et al.Cowart v. State of AlabamaTaylor v. TaylorSpringer v. DamrichEdwards v. EdwardsPitts v. PriestFrancis Powell Enterprises, Inc...
"Law of the Case" Did Not Bar Summary Judgment Where First Appellate Opinion Was "Contingent" on Unresolved Issues
Posted on March 12, 2008On a previous appeal of the same case, the Alabama Supreme Court reversed a summary judgment against a lessor’s fraud claim. That decision was not the “law of the case,” however, because it was premised on an issue the earlier decision did not reach — the merits of a logically prior contract claim...
Mandamus Petition Timed from Ruling on Motion for Protective Order
Posted on March 11, 2008A mandamus petition’s timeliness is measured from the date the trial court rules on a motion for a protective order — not from the date of its earlier order compelling production of the same material. Ex parte Nationwide Ins. Co., No...
"Supreme Court questions lawyers"
Posted on March 10, 2008The Alabama Supreme Court heard oral arguments in a case alleging bad faith in the handling of an insurance claim arising out of Hurricane Opal. To read about the oral argument, click on the article entitled "Supreme Court questions lawyers...
"Houston to receive service award"
Posted on March 10, 2008Former Alabama Supreme Court Justice J. Gorman Houston, Jr. will receive the Brewer-Torbert Public Service Award this week. Following are some articles on Justice Houston and the award:"Houston to receive service award" from the Montgomery Advertiser...
Cases Released March 7, 2008
Posted on March 07, 2008From the Alabama Court of Civil Appeals:Hicks v. Jackson County CommissionS.K. v. Madison County Department of Human ResourcesCapaci d/b/a Capaci Real Estate v. Folmar Kenner, LLCD.C.S. v. L.S.Millry Mill Company v. ManuelFrom the Supreme Court of Alabama:R...
Mandamus Review of Rulings on Subject Matter Jurisdiction: Facial and Factual Challenges
Posted on March 03, 2008Ex parte Safeway Ins. Co. of Alabama, Inc., No. 1061613 provides an interesting discussion regarding mandamus review of a trial court's ruling on a motion to dismiss based on subject matter jurisdiction. In this case, Galvin sued Safeway, her uninsured-motorist ("UM") carrier, for bad faith failure to pay an insurance claim stemming from a car accident in which she and an uninsured motorist were involved...
Alabama Supreme Court Reverses $4 Million Wrongful Death Verdict Based on Learned Intermediary Doctrine
Posted on March 03, 2008In Springhill Hospitals, Inc. v. Larrimore, No. 1051748, the Alabama Supreme Court reversed a $4 million wrongful death verdict based on the learned intermediary doctrine. Click here to review the opinion and here for a news article discussing it...
Cases Released on February 29, 2008
Posted on February 29, 2008From the Alabama Court of Civil Appeals:McGowin v. McGowinBarrett v. McPhersonDobyne v. State of AlabamaGoodyear Tire & Rubber Company v. Muilenburg From the Alabama Supreme Court:Springhill Hospitals, Inc., d/b/a Springhill Memorial Hospital v...
Appellate Courts Can Take Judicial Notice of Record in Previous Consideration of Litigation
Posted on February 26, 2008In Goetsch v. Goetsch, [Ms. 2060714] (Ala. Civ. App. Feb. 22, 2008), the Court of Civil Appeals noted the general rule regarding an appellate court's ability to take judical notice of prior appellate proceedings: "This Court takes judicial notice or has judicial knowledge of contents of it [sic] records with reference to its previous consideration of litigation presently before it...
A Post-Judgment Motion Which Has Become Moot Is Not Deemed Denied by Rule 59.1; Alternative Grounds for a Rule 59 Motion Are Not Waived if Not Asserted on Appeal
Posted on February 26, 2008On February 22, 2008, the Supreme Court denied rehearing but issued a modified opinion in the case Hilb, Rogal & Hamilton Co. v. Werner Beiersdoerfer, [Ms. 1060522] (Ala. Feb. 22, 2008) , originally released on December 14, 2007. The Supreme Court reaffirmed its holding that post-judgment motions which have become mooted are not subject to denial by operation of Rule 59...
Citation to a Statute Satisfies Ala. R. App. P. 28(a)(10)
Posted on February 26, 2008In V.W. v. G.W., [Ms 2060902] (Ala. Civ. App. Feb. 22, 2008) , the Court of Civil Appeals commented on the adequacy of citation of authority in a brief's argument, and held that citation to a statute was sufficient to satisfy Ala. R. App. P. 28(a)(10)...
Cases Released on February 22, 2008
Posted on February 25, 2008From the Alabama Court of Civil Appeals:Tyler v. TylerGoetsch v. GoetschClement v. SpannFeria v. SotoV.W. v. G.W. From the Alabama Supreme Court:Hilb, Rogal & Hamilton Co. v. Werner BeiersdoeferWood v. Booth Garlington v. State of AlabamaMcNabb v...
Faxed Notice of Appeal Not "Filed," Not Effective
Posted on February 19, 2008A notice of appeal is not “filed” and effective if it is only faxed to the court clerk. L.M. v. Shelby County Dept. of Human Resources, No. 2060860 (Ala. Civ. App. Feb. 15, 2008). The Court of Civil Appeals ruled that a faxed notice of appeal, that was otherwise timely, did not invoke its jurisdiction, and dismissed the appeal...
Determination of "Separate" Boundary Line Issue Not A Final Judgment
Posted on February 19, 2008The trial court “bifurcated” and decided one issue in a property line dispute, but reserved other issues for later decision. This did not constitute a final judgment from which an appeal would lie. The defendants’ attempt to gain review of the partial order was dismissed...
Rule 59.1 Extensions Squandered
Posted on February 19, 2008After obtaining two effective post-judgment extensions under Rule 59.1, a husband failed to appeal within 42 days of the circuit court’s order, and saw his appeal dismissed as untimely. Smith v. Smith, No. 2061150 (Ala. Civ. App. Feb. 15, 2008)...
Cases Released February 15, 2008
Posted on February 15, 2008From the Alabama Court of Civil Appeals:Smith v. SmithCurvin v. CurvinWeinrib, in his official capacity as Jefferson County Tax Assessor v. WolterHawk v. Roger Watts Insurance Agency et al.J.P. v. S.S. and C.S.L.M. v. Shelby County Department of Human ResourcesBrewton v...
Eleventh Circuit Offers Cautionary Note on Pleading, Briefing
Posted on February 13, 2008In an opinion that addresses a variety of Title VII claims, the Eleventh Circuit Court of Appeals offered the following comments about the impact that “shotgun pleadings” have on the federal courts:[T]he mischief shotgun pleadings causes undermines the public’s respect for the courts – the ability of the courts to process efficiently, economically, and fairly the business placed before them...
Court of Civil Appeals Rejects Constitutional Challenge to Add-Back Tax Statute
Posted on February 12, 2008The Court of Civil Appeals' opinion in Surtees v. VFJ Ventures, Inc., No. 2060478 (Ala. Civ. App. Feb. 8, 2008), contains an interesting, lengthy discussion of Alabama's add-back statute. After it rejected the reasons that appellee VFJ offered to support the trial court’s finding that the corporate income tax assessment that the Alabama Department of Revenue made against VFJ pursuant to Alabama’s add-back statute was in error, the Court of Civil Appeals reviewed, and ultimately refused, VFJ’s constitutional challenge to the statute...
Court Reaches Merits of Cert Petition though Brief Non-Compliant
Posted on February 11, 2008Although the petitioner’s brief did not contain all of the sections that ARAP 28 mandates, the Alabama Supreme Court entertained the petitioner’s request for a writ of certiorari to the Alabama Court of Civil Appeals. Ex parte Cleghorne, No...
Court of Civil Appeals Has Jurisdiction to Issue Writ of Mandamus
Posted on February 11, 2008A writ of mandamus provides a party with extraordinary relief because it permits appellate relief from a trial court order before a final judgment. To obtain a writ of mandamus, a party must demonstrate that he has a “clear legal right” to the requested relief; the respondent has an imperative duty which the respondent has refused to perform; the petitioner lacks an alternative remedy; and the appellate court has jurisdiction over the matter...
Cases Released February 8, 2008
Posted on February 08, 2008From the Alabama Court of Civil Appeals:Ex parte Steve Cagle Trucking Company, In re: Cagle v. Steve Cagle Trucking CompanySurtees, in his official capacity as commissioner of the Alabama Department of Revenue, and the Alabama Department of Revenue v...
Failure to Renew Evidentiary Objections Raised in Motion in Limine Waives Appellate Review
Posted on February 04, 2008Baldwin County Electric Membership Corp. v. City of Fairhope, No. 1060475 (Ala. February 1, 2008) serves as a good reminder of the requirement that evidentiary objections made in motions in limine must generally be renewed at trial in order to be preserved for appellate review...
Motion for Award of Costs and Fees is Not a Post-Judgment Motion Pursuant to Rule 59
Posted on February 04, 2008In Ford v. Jefferson County and Jefferson County Juvenile Services, No. 2060169 (Ala. Civ. App. February 2, 2008), the court held that a post-trial request for costs and fees is not a post-judgment motion pursuant to Rule 59. Therefore, it was not subject to the 30-day time requirement set forth in Rule 59(e)...
Yet Again, the Failure to File A Timely Notice of Appeal Results in the Dismissal of that Appeal
Posted on February 04, 2008For yet another example of the dismissal of an appeal based on the untimely filing of a notice of appeal, see J.T. v. A.B., No. 206057.
Cases Released February 1, 2008
Posted on February 01, 2008From the Alabama Court of Civil Appeals:V.G. v. Madison Department of Human ResourcesLocker v. City of St. Florian, et al.Dauphin Island Property Owners Association, Inc. v. PittsVann v. CookJ.T. v. A.B.Ford v. Jefferson CountyKovakas v. KovakasRussell v...
Void Judgment Will Not Support An Appeal
Posted on January 28, 2008In K.R. v. D.H., [Ms. 2061119] (Ala. Civ. App. Jan. 25, 2008), the Court of Civil Appeals dismissed an appeal for lack of jurisdiction because the trial court did not have jurisdiction over the underlying dispute. The court held that "because a judgment entered without subject-matter jurisdiction is void ...
Time To Appeal Runs From Date of Order Which Indicated Issues Were Resolved Against A Party
Posted on January 28, 2008Although the date of a Rule 60(a) order correcting a scrivener's error generally relates back to the date of the original order, in Brown v. Brown, [Ms. 2050935] (Ala. Civ. App. Jan. 25, 2008) , the Alabama Court of Civil Appeals held that an appeal was timely where it was filed within 42 days of the Rule 60(a) order where that order was the first time the party knew the trial court had ruled against it...
Alabama Supreme Court Overrules Garrett v. Raytheon; Claim For Exposure To Toxic Substance Now Accrues When There Is A Manifest Injury
Posted on January 28, 2008In a major change in Alabama toxic tort law, the Alabama Supreme Court overruled Garrett v. Raytheon, 368 So. 2d 516 (Ala. 1979), which had established the "date of last exposure" test for accrual of a cause of action based on exposure to a toxic substance...
Cases Released January 25, 2008
Posted on January 25, 2008From the Alabama Court of Civil Appeals:K.R. v. D.H.M.R.D. v. T.D.Springfield Missionary Baptist Church v. WallBrown v. BrownPatel v. Management Enterprise Development and Services, Inc., et al. From the Supreme Court of Alabama:Ex parte Sabrina Johnson et al...
Notice of Appeal Effective Even If Signed By Foreign Lawyer Not Admitted Pro Hac Vice
Posted on January 23, 2008An appeal could not be dismissed merely because the notice of appeal was signed by an out-of-state lawyer, even if that lawyer was not admitted pro hac vice in Alabama. Ex parte Taylor, No. 1051315 (Ala. Jan. 18, 2008). Though a criminal case, Taylor has obvious relevance to civil practice...
Landowner Waived Ownership Issue By Failing to Provide Authority and Argument
Posted on January 23, 2008A landowner waived the issue of whether he owned a watercourse by making only a cursory claim of ownership in his appellate brief, but failing to cite legal authority or make legal arguments to support that claim. Harper v. Coats, No. 1050145 (Ala...
Constitutionality of Statute Considered Only If Essential to Appeal
Posted on January 23, 2008The Court of Civil Appeals refused to consider a statute’s constitutionality, where deciding the constitutional question was not necessary to resolving the appeal. Nichols v. Nichols, No. 2060417 (Ala. Civ. App. Jan. 18, 2008).This case involved a mother’s attempt to modify a divorce judgment so that she could move her minor daughter out of Alabama...
Supreme Court Vacates Trial Court's Order Denying Motion to Dismiss Suit Against "Borat"; Forum Selection Clause Valid
Posted on January 20, 2008In Ex parte Sacha Baron Cohen, [Ms. 1061288] (Ala. Jan. 18, 2008), the Alabama Supreme Court, in a unanimous opinion, vacated the trial court's order denying the motion to dismiss filed by Sacha Baron "Borat" Cohen and other defendants...
Cases Released on January 18, 2008
Posted on January 18, 2008From the Alabama Court of Civil Appeals:Giardina v. GiardinaJackson v. State Farm Fire and Casualty CompanyDean v. DeanRamsey v. RamseyEdwards v. Intergraph Services Company, Inc.Nichols v. NicholsHealth Care Authority of Athens and Limestone County v...
Court Reviews Appeal Under Mootness Exception
Posted on January 18, 2008The Alabama Supreme Court conducted an unusual review of an appeal in Bright v. Calhoun, No. 1061146 (Ala. January 11, 2008). Although the issue on appeal was moot, the Court agreed to review the appeal because the issue was capable of repetition but evaded review under the circumstances of the appeal...
Appellate Courts Hold Firm on Waiver
Posted on January 18, 2008In a number of opinions released on January 11, 2008, the Alabama Supreme Court noted arguments that parties waived in their appellate briefs. See Roper v. Rhodes, No. 1060331, p. 4 n. 4 (Ala. Jan 11, 2008)(plaintiff waived appellate review of trial court’s holding that secretary of state was not proper party to election contest because plaintiffs did not include argument pertaining to the issue in their appellate brief); DiBiasi et al...
Enforcement Proceedings Do Not Disturb the Finality of Judgment
Posted on January 18, 2008A judgment does not lack finality simply because a trial court labels the judgment nonfinal. Trial court proceedings to enforce a judgment do not “disturb the finality of judgment.” Measures taken to enforce a judgment do not become “a vehicle to extend indefinitely the life of the lawsuit...
Appeal Dismissed; Trial Court Lacked Jurisdiction
Posted on January 17, 2008In Roper v. Rhodes, No. 1060331 (Ala. Jan 11, 2008), the Alabama Supreme Court reviewed an appeal from a trial court order in an election contest. The Court dismissed the appeal, finding that the trial court lacked subject matter jurisdiction over the plaintiffs’ claim because the plaintiffs did not follow the procedure set forth in Ala...
"Pavillion Development, LLC v. JBJ Partnership: The Court's Struggle With Waiver"
Posted on January 17, 2008Our own Madeline Haikala has a great article published in this Month's The Alabama Lawyer magazine. The article is entitled "Pavilion Development, LLC v. JBJ Partnership: The Court's Struggle With Waiver." The article discussed the recent Pavillion Development case and what it means to the appellate practitioner considering issues of waiver in the Alabama courts...
Cases Released January 11, 2008
Posted on January 14, 2008From the Alabama Court of Civil Appeals:Dabbs v. SRE, Inc., d/b/a Southern Real EstateB.H. v. R.E., Jr.S.P. v. V.T. From the Supreme Court of Alabama:Roper v. RhodesDiBiasi v. Wheeler Electric Membership Corp.First Properties, L.L.C. v. JP Morgan Chase Bank, National AssociationBright v...
Case Released on January 4, 2008
Posted on January 04, 2008From the Supreme Court of Alabama:Ex parte Deardorff, In re: Deardorff v. State of Alabama No opinions were released on this date by the Alabama Court of Civil Appeals.
Cases Released on December 28, 2007
Posted on December 28, 2007From the Alabama Supreme Court:Ex parte A & B Transport, Inc., In re: Graben v. A & B TransportFrom the Alabama Court of Civil Appeals:J.S. v. J.D.R.Buckner v. HoschAlabama Department of Environmental Management v. Alabama Rivers Alliance, Inc...
Cases Released December 21, 2007
Posted on December 21, 2007From the Alabama Court of Civil Appeals:Jacobs v. WhaleyUniversity of South Alabama Hospitals v. BlackmonFolks v. Tuscaloosa County Credit UnionReynolds v. WoodDyess, et al. v. Bay John Developers II, L.L.C. From the Supreme Court of Alabama:Ex parte Smith Wrecker Service, Inc...
A Post-Judgment Motion Which Has Become Moot Is Not Deemed Denied by Rule 59.1; Alternative Grounds for a Rule 59 Motion Are Not Waived if Not Asserted on Appeal
Posted on December 18, 2007In HIlb, Rogal & Hamilton v. Beirsdoerfer, No. 1060522, released December 14, the Supreme Court held that post-judgment motions which have become mooted are not subject to denial by operation of Rule 59.1. The court also concluded, in a matter of first impression, that a party who fails to raise its remittitur arguments on appeal from the grant of a motion for a new trial in its favor does not waive those arguments...
Cases Released on December 14, 2007
Posted on December 17, 2007From the Alabama Court of Civil Appeals:Bailey v. SawyerCity of Mobile v. Pinto Island Land Company, Inc.Werner Company v. DavidsonAlamo v. PCH Hotels and Resorts, Inc. d/b/a Mariott's Grand HotelBritt v. BrittKendrick v. Earl's, Incorporated et al.Montiel v...
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How do i go bout geting a free laywer to sue the durham police department for drug raids and nothing is found?they have been in my house 4 or 5 times seems like every 4 months or so and breaking down my door tearing up m
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can u tranfer a misdemnor to alabama from colordo
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