Appellate Law

Appellate Court Occasionally Conducts De Novo Review in Ore Tenus Case

"'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.' Bearden v. Ellison, 560 So. 2d 1042, 1043 (Ala. 1990). The presumption of correctness accorded to the trial court's findings based on evidence presented ore tenus `is particularly strong in boundary line disputes and adverse possession cases, and the presumption is further enhanced if the trial court personally views the property in dispute. Wallace v. Putman, 495 So. 2d 1072, 1075 (Ala. 1986).'  Bell v. Jackson, 530 So. 2d 42, 44 (Ala. 1988).'  Shirey v. Pittman, 985 So. 2d 484, 486 (Ala. Civ. App. 2007)."  Gilbreath v. Harbour, No. 2071242 (Ala. Civ. App. May 22, 2009).  "However strong the ore tenus presumption in adverse-possession cases, '[t]he presumption . . . is inapplicable where the facts are undisputed and the issue is resolved simply by applying the relevant law to these undisputed facts.' Lilly v. Palmer, 495 So. 2d 522, 526 (Ala. 1986)."  Id. 

Full post as published by Alabama Appellate Watch on May 31, 2009 (boomark / email).