Appellate Law

Post-Judgment Filings Did Not Disturb Finality of Judgment - Appellate Court Had Jurisdiction

Posted on August 17, 2009
The 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, 2009
The 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, 2009
From 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, 2009
In 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...

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Appeal From "Interim Judgment" Dismissed as From Non-Final Judgment

Posted on August 07, 2009
The 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, 2009
From 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, 2009
In  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, 2009
In J.J. v. J.B., [Ms. 208411] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals refused to dismiss an appeal even though the appeal was from an order dismissing the underlying dependency case "without prejudice."   Although the Alabama Supreme Court has held that a dismissal "without prejudice" will not support an appeal if the trial court did not address the merits of the case in its order, see  Palugi v...

Trial Court's Jurisdiction After Remand From Appellate Court Is Limited By Mandate

Posted on July 31, 2009
In 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, 2009
In 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, 2009
From 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, 2009
There 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, 2009
From 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, 2009
Well 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, 2009
The 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, 2009
From 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, 2009
Follow 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, 2009
In 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, 2009
From 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, 2009
In 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, 2009
In 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, 2009
In 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, 2009
The 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, 2009
From 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, 2009
  Reviewing 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, 2009
In 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, 2009
From 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, 2009
Plaintiffs 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, 2009
After 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...

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