Appellate Law

Issue, Though Preserved Below, Not Subject to Appellate Review When First Raised in Oral Argument

Posted on October 19, 2009
Ordinarily, an appellate court will not consider an argument that a party presents to the court for the first time at oral argument, even though the party preserved the argument in the lower court.  "Issues not clearly raised in the briefs are considered abandoned...

Court Raises Absence of Indispensible Party Ex Mero Moto

Posted on October 19, 2009
An appellate court must raise the absence of an indispensable party ex more moto and must dismiss an action without prejudice if the plaintiff has not joined an indispensable party.  The failure to join an indispensible party could produce inconsistent verdicts and "impact the rights, duties, and liabilities of the litigants, members of the public, and the county...

Unlike Jurisdiction, Party May Waive Argument Concerning Real Party in Interest

Posted on October 19, 2009
When the Court notices a possible jurisdictional defect in a case, it is incumbent upon the Court to examine the issue, even though no party has raised it.  The question of whether a case is being prosecuted by the real party in interest is not  a jurisdictional question...

Second Alabama Appellate Opinion Involving the Alabama Age Discrimination in Employment Act Released

Posted on September 30, 2009
While Lambert v. Mazer Discount Home Centers, Inc. does not implicate any civil litigation appellate issues, it is worth noting as it presents only the second time that an Alabama appellate court has considered the merits of a claim brought under the AADEA...

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Alabama Court of Civil Appeals Discusses Standard of Review Applicable to Order Dismissing Action for Failure to Comply with Discovery Rules

Posted on September 30, 2009
In Myers v. Harris, released September 25, 2009 by the Alabama Court of Civil Appeals, the court discussed the standard of review applicable to an order dismissing an action due to the plaintiff's failure to comply with the rules governing discovery...

New Appellate Fees Go Into Effect October 1, 2009

Posted on September 25, 2009
Effective October 1, 2009, the cost of appellate justice in Alabama is going up.  The new fees will be:   Appeal to Supreme Court or Court of Civil Appeals - $200 Rule 5 permission to appeal - $150 Petition for writ of certiorari - $150 Mandamus petition or other extraordunary writ - $150

"Citizens are entitled to information regarding the affairs of their government."

Posted on September 25, 2009
In Allen v. Barksdale, [Ms. 1080242] (Ala. Sept. 18, 2009), the Alabama Supreme Court held that certain prison records, including incident reports, are subject to the Open Records Act and had to be disclosed to plaintiffs.  The Department of Corrections argued that the records were part of the inmate's personal files and not subject to the Act...

Rule 60(b) Motion May Only Be Granted Where Movant Alleges and Proves a Ground Set Forth in the Rule

Posted on September 25, 2009
In Jefferson County Board of Health v. Birmingham Hide & Tallow Company, Inc., [Ms. 1080847] (Ala. Sept. 11, 2009), the Supreme Court reversed the granting of a Rule 60(b) motion for relief from judgment.  The motion in the trial court neither specified which subsection of the rule the motion was made, nor did it explain why relief was justified under the rule...

Cases Released September 25, 2009

Posted on September 25, 2009
From the Alabama Court of Civil Appeals: Sutton v. King, Attorney General, et al. P.D.S. v. Marshall County Department of Human Resources Myers v. Harris Lanbert v. Mazer Discount Home Centers, Inc. Wilson v. C-Sharpe Company, LLC Romer v. Romer The Alabama Board of Examiners in Psychology v...

Trial Court Has Discretion to Dismiss Action During Trial Due to Party's Refusal to Follow Instructions

Posted on September 24, 2009
In Ex parte Folmar Kenner, LLC [Ms. 1070824] (Sept. 18, 2009), the Alabama Supreme Court held that it was within the trial court's discretion to dismiss a parties counterclaims, with prejudice, during trial when a party did not follow the court's instructions to just answer the questions asked and to not elaborate on her answers...

Appeal Dismissed Because Judgment Entered in Will Contest Void

Posted on September 24, 2009
The Supreme Court sue sponte dismissed the appeal in Jean v. Jean, [Ms. 1080989] (Ala. Sept. 19. 2009),  because the underlying judgment was void.  The underlying dispute was a will contest originally brought in probate court, which was transferred to the circuit court...

Grandparents Do Not Hvae Standing to Appeal the Termination of Parent's Rights

Posted on September 24, 2009
The Court of Civil Appeals dismissed an appeal for lack of standing in G.P. v. Houston County D.H.R., [Ms. 2080591, 2080606] (Ala. Civ. App. Sept. 19. 2009).  The maternal grandmother appealed the termination of parental rights of the parents.  The Court of Civil Appeals held that a grandparent has no legally protected parental rights, and cannot assert arguments on behalf of the parents...

Grandparents Do Not Have Standing to Appeal the Termination of Parent's Rights

Posted on September 24, 2009
The Court of Civil Appeals dismissed an appeal for lack of standing in G.P. v. Houston County D.H.R., [Ms. 2080591, 2080606] (Ala. Civ. App. Sept. 18. 2009).  The maternal grandmother appealed the termination of parental rights of the parents.  The Court of Civil Appeals held that a grandparent has no legally protected parental rights, and cannot assert arguments on behalf of the parents...

Court Reviews Constitutional Challenge to Statute De Novo

Posted on September 21, 2009
The Alabama Supreme Court applies the de novo standard of review to constitutional challenges to state statute. The Court 'approach[es] the question of the constitutionality of a legislative act ‘'with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government...

Incomplete Appellate Record Defeats Appeal

Posted on September 20, 2009
In Cantrell v. Holland, No. 2080494 (Ala. Civ. App. Sept. 11, 2009), the Alabama Circuit Court of Appeals held that it was without sufficient information to decide the jurisdictional issue that the appellant raised because the record on appeal contained only one pleading...

Cases Released September 18, 2009

Posted on September 19, 2009
From the Alabama Court of Civil Appeals: G.P. v. Houston County Department of Human Resources Bedsole v. Sheriff Clark Powell v. Powell DeShazo Crane Company, LLC v. Harris Crum v. LaSalle Bank, N.A. Complete List of Cases from the Alabama Court of Civil Appeals   From the Alabama Supreme Court: Ex parte Blackstock; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Davis v...

Alabama Supreme Court Clarifies Elements of Tort of Wrongful Interference with a Business Relationship

Posted on September 14, 2009
In White Sands Group, L.L.C. v. PRS II, LLC, the Alabama Supreme Court clarified the elements of the tort of wrongful interference with a business relationship.  Those elements are now settled to be: (1) the existence of a protectible business relationship; (2) of which the defendant knows; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage...

Agreement for an Extension of Time Within Which to File an Answer Does Not Waive Venue Defenses

Posted on September 14, 2009
In Ex parte Movie Gallery, the Alabama Supreme Court rejected the plaintiff's argument that the defendant had waived its venue defenses where the parties agreed to extend the time for Movie Gallery to file its answer.  Nixon sued Movie Gallery on October 27, 2006...

Alabama Supreme Court Dismisses State Agencies from Appeal: Trial Court Was Without Jurisdiction Over Them

Posted on September 14, 2009
In State Board of Education v. Mullins, No. 1080007, the Alabama Supreme Court dismissed state agencies from the appeal, noting sovereign immunity rendered the trial court without jurisdiction over them.The plaintiffs filed the underlying action and named a number of state education agencies and officials as defendants...

Party Waives Res Judicata Argument By Failing to Raise it in the Trial Court

Posted on September 14, 2009
In Crews v. McLing, No. 1071479, released by the Alabama Supreme Court on September 4, 2009, the defendant-appellant's failure to advance the defense of res judicata in the trial court precluded him from raising it in the appellate court.   The McLings sued Crews and his construction company alleging that Crews had negligently delivered and installed the mobile home that they purchased from CHI...

Cases Released September 11, 2009

Posted on September 14, 2009
From the Alabama Court of Civil Appeals: Owens v. Owens Alabama State Employees Association v. Sanks Palmer v. Browning Cantrell v. Holland Edosomwan v. A.B.C. Daycare and Kindergarten, Inc. Sanders v. Sanders Silbernagel v. Maranatha Baptist Church, Inc...

Cases Released September 4, 2009

Posted on September 08, 2009
From the Alabama Court of Civil Appeals: S.T.W. v. Franklin County Department of Human Resources Wehadkee Yarn Mills v. Harris Goodyear Tire and Rubber Company, Inc. v. Long Gatlin v. Joiner et al. KLW Enterprises, Inc. v. West Alabama Commercial Industries, Inc...

Another Appeal Dismissed For Failure To Comply With Rules For Appeals From Arbitration Awards

Posted on September 02, 2009
Yet another appeal was dismissed for failure to follow the rules for appealing arbitration awards.  In Lindsey v. Deep South Properties, LLC, [Ms. 1080701] (Ala. Aug. 21, 2009), Deep South Properties obtain an arbitration award against Lindsey...

Party Cannot Amend Complaint After Final Judgment Entered

Posted on September 02, 2009
In Ex parte Progressive Specialty Ins. Co., [Ms. 1080366] (Ala. Aug. 21, 2009), the Alabama Supreme Court issued a writ of mandamus directing the trial court strike an amendment purporting to add new claims and new parties made after final judgment was entered...

Appeals From Juvenile Court Subject To Shorter Deadlines; Appeal Dismissed As Untimely

Posted on September 02, 2009
In R.J.G. v. S.S.W., [Ms. 2080509] (Ala. Civ. App. Aug. 21, 2009), a portion of a father's appeal was dismissed as untimely as a result of the short deadlines for appeals from a juvenile court.  Unlike in Circuit Court, post-judgment motions in a juvenile court must be filed within 14 days of the entry of the order...

Cases Released August 28, 2009

Posted on August 29, 2009
From the Alabama Court of Civil Appeals: M.S. v. Alabama Department of Human Resources Corwin v. Corwin Hartley v. Hartley Wood v. Wood Grace v. Standard Furniture Manufacturing Company, Inc. Johnson v. Halagan Fort James Holding Company, Inc., d/b/a Georgia Pacific v...

In Discretionary Situations, Mandamus does not Compel Particular Exercise of Discretion

Posted on August 21, 2009
Mandamus is an extraordinary remedy.  When a party directs a petition for mandamus to an order that the trial court entered in exercise of its discretion, the appellate court may compel the exercise of discretion, but it may not compel that exercise in a particular manner...

Arbitration Record Must Contain Evidence of Interstate Commerce

Posted on August 21, 2009
The Alabama Court of Civil Appeals recently reversed an order compelling arbitration because the record contained no evidence other than the contract itself to prove that the contract involved interstate commerce.  Accent Realty, Inc. v. Snopl, No...

Trial Record Must Contain Evidence of Interstate Commerce to Support Arbitration

Posted on August 21, 2009
The Alabama Court of Civil Appeals recently reversed an order compelling arbitration because the trial court record contained no evidence, other than the contract containing the arbitration clause, to prove that the transaction involved interstate commerce...

Cases Released August 21, 2009

Posted on August 21, 2009
From the Alabama Court of Civil Appeals: R.J.G. v. S.S.W. Saad et al. v. Saad Weeks v. Herlong Hanks v. Spann Garrie v. Summit Treestands, LLC Complete List of Cases from the Alabama Court of Civil Appeals   From the Supreme Court of Alabama: Ex parte Wallace, Jordan, Ratliff & Brandt, L...

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