Appellate Law

Cases Released September 12, 2008

Posted on September 15, 2008
From 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, 2008
In 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, 2008
A 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, 2008
When 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...

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No "Exceptional Circumstances" Justified Granting Motion Under Rule 60(b)(6); Appeals Did Not Preclude Timely 60(b)(1) Filing

Posted on September 10, 2008
A 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, 2008
The 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, 2008
A 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, 2008
A 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, 2008
Judgments 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, 2008
From 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, 2008
From 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, 2008
In 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, 2008
The 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, 2008
In 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, 2008
The 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, 2008
In 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, 2008
From 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, 2008
This 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, 2008
M.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, 2008
In 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, 2008
From 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, 2008
In 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, 2008
From 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, 2008
From 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, 2008
In 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, 2008
In 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, 2008
In 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, 2008
From 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, 2008
In 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, 2008
In 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...

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