Appellate Law

Argument Must Be Raised To Trial Court To Preserve For Appeal

By Ivan B. Cooper

In this interesting case involving Homeowners' Associations, restrictive covenants, and what actually is an acceptable driveway, one of the issues was disposed of on appeal because it was not raised first  to the trial court.  Grove Hill Homeowners' Association, Inc. v. Rice, [Ms. 2081093] (Ala. Civ. App. Feb. 5, 2010).

The Homeowners' Association sued homeowners seeking to have the homeowners forced to remove and rebuild their driveway.  The driveway was constructed out of liquid asphalt and loose pea gravel. The restrictive covenants required that all driveways be constructed of asphalt or concrete, and provided that gravel and loose stone driveways were prohibited.  The driveway at issue, however, appeared to be a combination.  The trial court found that the restrictive covenant was ambiguous and denied the injunction.

On appeal, the Homeowners' Association argued that the trial court failed to use the deferential arbitrary and capricious standard of review in reviewing the Homeowners' Association decision on the driveway and instead reviewed the issue de novo.  But the Court of Civil Appeals refused to consider this argument because it was not raised in the trial court first.  "In order to preserve an alleged error of law for appellate review, the appellant must bring that alleged error to the attention of the trial court and receive an adverse ruling."  Slip Op. p. 10.  The Homeowners' Association did not file a post-judgment motion setting out this alleged error, therefore, the error could not be raised on appeal.

But ultimately, the Court of Civil Appeals sided with the Homeowners' Association.  The Court found that there was no ambiguity and that the restrictive covenants prohibited the driveway at issue.  The Court remanded the case back to the trial court to determine whether the Homeowners' Association had met all other elements necessary  to obtain an injunction.

Full post as published by Alabama Appellate Watch on February 18, 2010 (boomark / email).