Appellate Law

Unlike Jurisdiction, Party May Waive Argument Concerning Real Party in Interest

When 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.  The real party in interest is the person who possesses the right that is sought to be enforced.  For a defendant to challenge an action on the basis of the plaintiff's inability to pursue the claim because the plaintiff is not the real party in interest, the defendant must brief the issue in its mandamus petition.  A petitioner waives arguments that it does not make in its petition.  The Court will not "do independent research to determine whether a petitioner for a writ of mandamus has established a clear legal right."  Ex parte Simpson, No. 1080981 (Ala. Oct. 16, 2009). 

Full post as published by Alabama Appellate Watch on October 19, 2009 (boomark / email).