Appellate Law

Final Judgment Rule Results in Dismissal of Two Cases

Posted on May 06, 2009
The Court of Civil Appeals dismissed two appeals last week, J. Bryant, LLC v. City of Birmingham, No. 20704553, and Morgungenko v. Dwayne's Body Shop, No. 2071080.  The court held that neither appeal was from a final judgment.    In the Bryant case, the part owner of an adult-entertainment establishment ("Lynn's Den") appealed from the circuit court's order reviewing the city council's denial of his dance permit...

Knowledge That Case Went to Appellate Mediation Did Not Require Court's Recusal

Posted on May 04, 2009
The Supreme Court of Alabama would not recuse itself just because it knew that a case had been referred to an ultimately unsuccessful appellate mediation.  Consistent with the governing rules, the Court had no confidential information concerning the mediation...

Cases Released May 1, 2009

Posted on May 01, 2009
From the Alabama Court of Civil Appeals: J. Bryant, LLC v. City of Birmingham J.K. v. N.J. and Jefferson County Department of Human Resources Lee v. Oliver Butler v. MaxiStorage, Inc. Flowers v. Dean Bishop State Community College v. Douglas Morgungenko v...

Order Was Not Final Which Did Not Address Request to Modify Child Support

Posted on April 30, 2009
 A trial court's order adjudicated the wife's contempt petition but did not address her request for a change in the husband's child-support obligation.  The order therefore was not final and would not support an appeal.  Cooper v. Cooper, No...

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Court of Civil Appeals Reviews Probate Appeal From Circuit Court

Posted on April 30, 2009
 The Court of Civil Appeals addressed two issues in probate appeals.  Section 12-22-21(1) of the Alabama Code, the court first held, allows direct appeals from non-final judgments of both the probate and circuit courts.  The circuit court's non-final summary judgment therefore did not need to be certified under Rule 54(b)...

Lawyer's Affidavit Thwarted Mandamus Petition; Court Exceeded Discretion By Ordering More Discovery Than Requested

Posted on April 30, 2009
The Alabama Supreme Court partly granted a mandamus petition in this discovery dispute. It first held that the substantively unchallenged affidavit of the plaintiff's lawyer, describing an unrecorded hearing in the trial court, provided sufficient evidence to defeat the mandamus petition...

Fact Findings in Bench Trial Obviate Need For Objection or Post-Judgment Motion

Posted on April 29, 2009
A mother argued that there was insufficient evidence to support the trial court's custody decision. She had not raised this argument in the trial court. Nonetheless, it was preserved for appeal. Because this was a bench trial, in which the trial court made factual determinations on the custody issue, the mother could challenge sufficiency on appeal without having raised it by objection or post-judgment motion below...

Appellate Court Will Not issue Advisory Opinion

Posted on April 27, 2009
An appellate court may not issue an advisory opinion.  A decision may constitute an advisory opinion when the party whose conduct is at issue is not before the court so that the court's decision will have no effect. BWT v. Haynes, No. 2071235 (Ct...

Rule 54(b) Certification Abuse of Discretion where Remaining Claims Closely Intertwined with Decided Claims

Posted on April 26, 2009
In Centennial Assoc., Ltd. v. Guthrie, No. 1080015 (Ala. April 17, 2009), the Alabama Supreme Court dismissed an appeal from a summary judgment disposing of all of the plaintiffs' claims against one of the defendants because the Court found that the trial court abused its discretion in issuing a Rule 54(b) certification that permitted appeal from the partial summary judgment...

Rule 62 Motion to Stay Does Not Suspend Time for Appeal

Posted on April 25, 2009
Following the entry of final judgment in a wrongful death action, the defendant filed two post-judgment motions, neither of which suspended the 42 day period for filing a notice of appeal. ARAP 4(a). The Rule 62 motion to stay in which the defendant requested time to consider filing a Rule 59 motion did not satisfy the requirements of ARAP 4(a)(3)...

Cases Released April 24, 2009

Posted on April 24, 2009
From the Alabama Court of Civil Appeals: Cooper v. Cooper Brown v. Brown Proctor v. Classic Automotive, Inc. Francis Powell Enterprises, Inc. v. Andrews Adams v. Adams T.G. v. Houston County Department of Human Resources Campbell v. Campbell Tyson v. Tyson Abernant Fire Department v...

Cases Released on April 17, 2009

Posted on April 20, 2009
From the Alabama Supreme Court: Marvin Roland Graves v. Mary Golthy, administratrix of the estate of Freddie Gothy, Jr., deceased Affinity Hospital, L.L.C., d/b/a Trinity Medical Center, and David Brittin, R.N. v. Doris Williford, as administrator ad litem of the estate of Kristopher Mark Kean, deceased Centennial Associates, Ltd...

Supreme Court Dismisses Appeal for Lack of Subject Matter Jurisdiction

Posted on April 15, 2009
In Bon Harbor, LLC v. United Bank, the Alabama Supreme Court dismissed two consolidated appeals due to lack of subject matter jurisdiction: one appeal was from a non-final judgment; the other was from a judgment that was void because it was entered while the first order was on appeal...

Court of Civil Appeals Dismisses Appeal as Untimely Where Trial Court Failed to Enter Order into SJIS

Posted on April 15, 2009
In Dulaney v. Dulaney, released last week by the Court of Civil Appeals, the court held that the mother's notice of appeal was untimely filed even though the trial court failed to enter the order into SJIS and she did not otherwise have notice of it...

Cases Released April 10, 2009

Posted on April 10, 2009
From the Alabama Court of Civil Appeals: Cotten v. St. Bernard Preparatory School Dulaney v. Dulaney Haynes v. Coleman Complete List of Cases from the Alabama Court of Civil Appeals   From the Alabama Supreme Court: Ex parte Barnett; Petition for Writ of Certiorari to the Court of Criminal Appeals (In re: Barnett v...

Striking Of Expert For Failure To Timely Disclose In Accordance With Scheduling Order Not A "Sanction"

Posted on April 10, 2009
In Cobb v. Fisher, [Ms. 1071501] (Ala. April 2, 2009), the Alabama Supreme affirmed the trial court's striking of an expert which was disclosed in an untimely matter in a medical malpractice case.  The  and further concluded that the striking of the expert, which resulted in summary judgment for the defendant, was not technically a "sanction...

Narrative Summary of Undisputed Facts Must Be Before Trial Court When It Rules on Motion For Summary Judgment

Posted on April 10, 2009
An interesting discussion of the requirement that a narrative summary of unsdisputed facts, as required by Ala. R. Civ. P. 56, must be before the trial court when it rules on a summary judgment motion is found in Kelmore, LLC v. Alabama Dynamics, Inc...

Failure To Inclue Transcript Or 10(d) Statement Means Trial Court's Findings Conclusively Presumed To Support Judgment

Posted on April 10, 2009
In Beverly v. Beverly, [Ms. 2071085] (Ala. Civ. App. April 3, 2009), the Court of Civil Appeals found that a judgment was supported by the evidence because no transcript or statement of proceedings was in the record.After receiving ore tenus evidence, the trial court made certain factual findings in its order requiring post-minority child support...

Party Generally Cannot Cross-Appeal Favorable Ruling

Posted on April 08, 2009
In Picard v. Credit Solutions, Inc., No. 08-11104 (April 6, 2009), the Eleventh Circuit held that it lacked jurisdiction over the plaintiff's cross-appeal of an issue in an order in her favor.  Noting that the language that the plaintiff challenged was dicta, the Court explained that, "'[o]rdinarily, the prevailing party does not have standing to appeal because it is assumed that the judgment caused that party no injury...

Cases Released April 3, 2009

Posted on April 06, 2009
From the Alabama Court of Civil Appeals: Mason v. Wilson C.S.B. v. State Department of Human Resources Beverly v. Beverly Rogers v. Penske Truck Leasing Co., L.P. Steward v. Steward Complete List of Cases from the Alabama Court of Civil Appeals   From the Alabama Supreme Court: Governor Riley v...

Appellate Court Raises Indispensable Party Issue First Time on Appeal

Posted on April 05, 2009
"The absence of an indispensable party is a jurisdictional defect that renders a proceeding void."  Allbritton v. Dawkins, No. 2080063 (Ala. Civ. App. March 27, 2009).  When a "'final judgment will affect ownership of an interest in real property, all parties claiming an interest in the real property must be joined...

Court Determines Standard of Review for Denial of AALA Claim

Posted on April 05, 2009
In Mahoney v. Loma Alta Property Owners Assoc., No. 2080192 (Ala. Civ. App. March 27, 2009), the Court of Civil Appeals noted that although the Alabama Supreme Court has identified the standard of review for trial court awards of damages under the Alabama Litigation Accountability Act, the Court has not addressed the standard of review for appeals from orders denying a claim for ALAA damages...

Court Explains Worker's Compensation Causation Standard of Review

Posted on April 01, 2009
In Waters Brothers Contractors, Inc. v. Wimberley, No. 2070871 (Ct. Civ. App. March 6, 2009), the Alabama Court of Civil Appeals discussed the standard of review regarding causation in a worker's compensation case.  The court found that the employer's expert's testimony did not defeat the employee's claim for benefits...

Non-Final Post-Divorce Proceeding Will Not Support Appeal

Posted on April 01, 2009
The Court of Civil Appeals dismissed an appeal from an action to modify a divorce judgment because the trial court's decision did not include a ruling on the father's request for a finding of contempt. Hollander v. Barnes, No. 2070627 (Ct. Civ. App. March 6, 2009)...

Cases Released March 27, 2009

Posted on March 27, 2009
From the Alabama Court of Civil Appeals: Mahoney v. Loma Alta Property Owners Association, Inc. Campton v. Miller Galloway v. Ozark Striping, Inc. Allbritton v. Dawkins Burleson v. Burleson Shewbart v. Shewbart McConico v. Correctional Medical Services, Inc...

Representative Could Not Bring Wrongful Death Claim That Was Time-Barred to Decedent

Posted on March 26, 2009
A personal representative could not bring a wrongful death suit where the underlying personal injury claim would have been time-barred to her decedent. The Supreme Court of Alabama affirmed a summary judgment dismissing the representative's claim. The court also discussed intertwining issues of limitations and conflict of laws...

Void Default Judgment Should Have Been Vacated Under Rule 60(b)(4)

Posted on March 25, 2009
Where a defendant was not served with process, a default judgment entered against her was void for lack of personal jurisdiction. The trial court should have granted her motion to vacate that judgment under Rule 60(b)(4). The Court of Civil Appeals reversed the lower court and ordered the default judgment vacated...

Appeal From Non-Final Denial of Hearing Would Not Be Treated As Mandamus Petition

Posted on March 25, 2009
The juvenile court did not adjudicate "all matters in controversy," in a dependency case, by denying the mother's request for a hearing. That denial therefore was not a final judgment that would support an appeal. Nor did the mother present evidence showing that the lower court had exceeded its discretion in refusing to grant a hearing...

"Justice for all: The Alabama Supreme Court affects the lives of all Alabamians"

Posted on March 23, 2009
Here is a link to an opinion piece from The Anniston Star entitled "Justice for all: The Alabama Supreme Court affects the lives of all Alabamians" about recent oral arguments before the Alabama Supreme Court.

Cases Released March 20, 2009

Posted on March 20, 2009
From the Alabama Court of Civil Appeals: J.W.K. v. Marshall County Department of Human Resources Cleveland v. Cleveland Dennis v. Still Waters Residential Association, Inc. Stanford v. Stanford Wright v. Wright Complete List of Decisions from the Alabama Court of Civil Appeals   From the Alabama Supreme Court: Ex parte Folsom; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Folsom v...

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