Appellate Law

Summary Judgment Denial Not Reviewed By Mandamus Despite Involving Time Bar Against Previously Fictitious Party

Posted on June 22, 2009
A 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, 2009
From 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, 2009
From 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, 2009
Eight 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...

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Trial Court's Failure To Hold Hearing on Post-Trial Motions Was Reversible Error

Posted on June 10, 2009
  While 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, 2009
Appeals 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, 2009
The 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, 2009
From 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, 2009
After 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, 2009
In 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, 2009
In 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, 2009
In 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, 2009
Last 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, 2009
In 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, 2009
Washington 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, 2009
From 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, 2009
From 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, 2009
Two 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, 2009
The 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, 2009
From 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, 2009
In 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, 2009
In 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, 2009
In 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, 2009
In 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, 2009
From 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, 2009
In 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, 2009
In 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, 2009
Two 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...

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