Appellate Law

Untimely Filing of Notice of Appeal Results in Dismissal in Part

Posted on March 16, 2009
In Liberty Mutual Insurance Company v. Greenway Enterprises, Inc., released by the Alabama Court of Civil Appeals on March 13, the court dismissed the appeal in part for failure to timely file a notice of appeal.  Liberty Mutual sued Greenway in this workers' compensation and employers' liability insurance policy case...

"Experience wanted for judge jobs"

Posted on March 16, 2009
Bills pending in the Alabama Legislature would set minimum periods that a person would have to be a licensed attorney before becoming a judge.  For an article on these bills, click the link to "Experience wanted for judge jobs" from The Birmingham News, via al...

Cases Released March 13, 2008

Posted on March 13, 2009
From the Alabama Court of Civil Appeals: S.D.P. v. U.R.S. Crum et al. v. Johns Manville, Inc., et al. Parris v. Prison Health Services, Inc. Belcher v. Belcher Liberty Mutual Insurance Companies v. Greenway Enterprises, Inc. Complete List of Decisions from the Alabama Court of Civil Appeals   From the Alabama Supreme Court: Ex parte City of Dothan; Petition for Writ of Mandamus (In re: City of Dothan v...

Court of Civil Appeals Dismisses Appeals For Lack of Jurisdiction

Posted on March 10, 2009
The duty of the appellate court to dismiss appeals where it does not have jurisdiction is evidenced in three cases from the Court of Civil appeals this week. In K.S. v. H.S., {Ms. 2071034] (Ala. Civ. App. March 6, 2009), the Court of Civil Appeals dismissed the appeal ex mero motu because the underlying judgment was void...

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Motion For Summary Judgment Must Be Based On Evidence, Not Mere Averments

Posted on March 10, 2009
In Jones-Lowe Company v. Southern Land and Exploration Company, Inc., [Ms. 1071575] (Ala. March 6, 2009), the Alabama Supreme Court reversed the trial court's granting of a motion for summary judgment because the motion was based on mere averments and not supported by evidence filed with the trial court...

Cases Released March 6, 2009

Posted on March 09, 2009
From the Alabama Court of Civil Appeals: Hale v. Kroger Limited Partnership I W.C.R. v. D.A.L. and D.L. K.S. v. H.S. Brown v. Brown R.T.B. v. Calhoun County Department of Human Resources Hurst v. Eagles Landing IV, Ltd. Waters Brothers Contractors, Inc...

Cases Released February 27, 2009

Posted on February 27, 2009

Court Underscores Distinction Between Moving for JML and Challenging Jury Charges

Posted on February 24, 2009
A defendant correctly moved at trial for judgment as a matter of law (JML) on the ground that the evidence did not raise a jury question. In arguing that the defendant had to challenge the correctness of the jury charges in order to preserve this JML argument, the plaintiffs were confusing different legal phenomena...

Notice Filed in Wrong Court, And Not on Form ARAP-1, Nonetheless Secured Appeal

Posted on February 23, 2009
A homeowner filed a notice of appeal that was not on the Form 1 contained in the Alabama Rules of Appellate Procedure. Moreover, she mistakenly filed her notice in the county’s district rather than circuit court. However, her notice contained all the information required by law, and the district and circuit courts shared the same clerk...

Landowner Could "Reasonably Burden" Neighbor's Easement

Posted on February 23, 2009
The Court of Civil Appeals reaffirmed a longstanding principle of property law, holding that a property owner could erect a gate on his land, even though the gate crossed, and, “at worst,” “negligibly” burdened a neighbor’s easement...

Cases Released February 20, 2009

Posted on February 20, 2009
From the Alabama Court of Civil Appeals: Horton v. Perkins Williams v. Hill Gardner v. State of Alabama Water and Wastewater Board of the City of Madison v. City of Athens Hammond v. Lovvorn Whorton v. Bruce Norandal U.S.A., Inc. v. Graben Complete List of Decisions from the Alabama Court of Civil Appeals   From the Alabama Supreme Court: Ex parte Perch; Petition for Writ of Mandamus (In re: Perch v...

Consolidated Appeals Dismissed; Underlying Judgments Void

Posted on February 14, 2009
Both of the consolidated appeals in Hayes v. Hayes were dismissed as from void judgments.  The participants this custody/child support dispute appealled from judgments dated August 4, 2008 and August 28, 2008.  The court dismissed both of the appeals, however, finding that the trial court lacked jurisdiction to enter either of them...

Bulk of Appeal Dismissed as Untimely Filed

Posted on February 14, 2009
The Court of Civil Appeals dismissed the bulk of the appellant's appeal in Watson v. Whittington Real Estate, LLC as untimely filed.Two orders were at issue in Watson: the first was a January 10, 2007 judgment which "disposed of all remaining claims in all cases, except for the amount of attorneys fees and costs...

Improper Rule 54(b) Certification Results in Dismissal of Appeal

Posted on February 14, 2009
In Schlarb v. Lee, the Alabama Court of Civil Appeals held that improper Rule 54(b) certification warranted dismissal of this appeal. Scharb embodies the litigants' second attempt at appealing the orders of the trial court.  This time around, the trial court entered an order on March 28, 2008 certifiying its February 21, 2008 order as final pursuant to Rule 54(b)...

Cases Released February 13, 2009

Posted on February 13, 2009
From the Alabama Supreme Court: Ex parte Steele; Petition for Writ of Certiorari (In re: Steele v. State of Alabama) Ex parte McConico; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: McConico v. State of Alabama) Ex parte Webb et al...

Negligence of Attorney Is Not Imputed to Insurance Company Which Retained Attorney to Represent Insured

Posted on February 11, 2009
In a question of first impression in Alabama, the Court in Lifestar Response of Alabama, Inc. v. Admiral Insurance Company, [Ms. 1060776] (Ala. Feb. 6, 2009), held that the negligence of an attorney hired to represent an insured is not imputed to the insurance company which retained the attorney...

New Civil Procedure Rules For Review of Arbitration Awards Now In Effect

Posted on February 10, 2009
One issue which has been the subject of many recent Alabama Supreme Court opinions is the proper procedure by which to review arbitration awards in the trial court.  In response to these cases, the court has instuituted new rules setting out the proper procedure...

Non-Resident Aliens Not Entitled to Recovery of Death Benefits Under Alabama's Workers' Compensation Act

Posted on February 10, 2009
In Duran v. Goff Group, [Ms. 2070763] (Ala. Civ App. Feb 6, 2009), the Court of Civil Appeals held that non-resident aliens are not entitled to the death benefits as a result of the death of a worker.  The statute specifically provides that "Compensation for the death of an employee shall be paid only to dependants who, at the time of the death of the injured employee, were actually residents of the United States...

Setting Aside of Default Judgment Affirmed

Posted on February 10, 2009
In Moore v. Welch, [Ms. 2070709] (Ala. Civ. App. Feb. 6, 2009), an employee sued his co-employees for willfulness resulting in an on the job injury after he was seriously burned when two fire extinguishers malfunctioned and the flames could not be put out...

"Time of Performance Clause" Does Not Merge Into Deed Upon Closing For Purpose of Breach of Contract Claim in Real Estate Transaction

Posted on February 10, 2009
In a case of first impression in Alabama, the Court of Civil Appeals held that a "time of performance clause" in a real estate contract did not merge into the final deed upon delivery.  Brogden v. Durkee, [Ms. 2070265] (Ala. Civ...

Appeal of Arbitration Award Dismissed Because Judgment Was Never Enetered; Alternate Bases For Jurisdiction Rejected

Posted on February 10, 2009
In Dawsey v. Raymind James Financial Services, Inc. [Ms. 1070861] (Ala. Feb. 6. 2009), the Alabama Supreme Court dismissed an appeal of an arbitration award because the Circuit Court Clerk had not entered the judgment, as is required to begin judicial review of an award...

Appeal of Arbitration Award Dismissed Because Judgment Was Never Entered; Alternate Bases For Jurisdiction Rejected

Posted on February 10, 2009
In Dawsey v. Raymind James Financial Services, Inc. [Ms. 1070861] (Ala. Feb. 6. 2009), the Alabama Supreme Court dismissed an appeal of an arbitration award because the Circuit Court Clerk had not entered the judgment, as is required to begin judicial review of an award...

Court Reviews Sua Sponte Judgment on the Pleadings De Novo

Posted on February 09, 2009
In Medlock et al. v. Safeway Ins. Co., No. 1071303 (Ala. Jan. 30, 2009), the Alabama Supreme Court reviewed de novo the judgment that the trial court entered in a declaratory judgment action before the plaintiff insurance company filed a motion for summary judgment...

Appellee May Not Cross-Appeal Summary Judgment in its Favor

Posted on February 09, 2009
In American General Life Ins. Co. v. Schoenthal Family, LLC, No. 08-10749 (11th Cir. Jan. 30, 2009), American General cross-appealed from a summary judgment in its favor on its claim for rescission of an insurance policy.  AG argued that the district court should have entered judgment in its favor on other grounds that AG raised in its summary judgment motion...

Court Decides Appeal Though Appellant Did Not Comply With Briefing Rule

Posted on February 08, 2009
The Court of Civil Appeals in Barnette v. Robertson, No. 2070689 (Ala. Civ. App. Jan. 30, 2009), exercised its discretion to address the merits of the appellant’s argument even though the appellant, “in contravention of Rule 28(a)(10), Ala...

Determination of Mootness Not Final Judgment -- Supports Neither Appeal Nor Mandamus

Posted on February 06, 2009
The probate court did not enter a “final judgment” by holding that a request for litigation costs was moot. The circuit court erred, therefore, by faulting the defendants for not appealing from that holding or seeking a writ of mandamus to correct it...

Cases Released February 6, 2009

Posted on February 06, 2009
From the Alabama Supreme Court: Lifestar Response of Alabama, Inc. v. Admiral Insurance Company Ex parte Martinez; Petition for Writ of Certiorari to the Court of Criminal Appeals (In re: Martinez v. State of Alabama) Ex parte Navistar, Inc., f/k/a International Truck and Engine Corporation; Petition for Writ of Mandamus (In re: Price v...

Party Cannot Appeal Judgment That Does Not Affect It Adversely

Posted on February 05, 2009
The Jefferson County Sheriff’s Department was not adversely affected by a decision of the county’s Personnel Board. Therefore, the Department could not appeal from that decision. The circuit court should have dismissed the Department’s appeal...

Issue Was Preserved Where Trial Court Understood Basis of Objection to Jury Charge

Posted on February 05, 2009
Even if the objection to a jury charge could have been more specific, the record showed that the trial court understood the basis of the objection, and had a chance to rule on the issue it raised. This was enough to preserve the issue for appeal...

Cases Released January 30, 2009

Posted on January 30, 2009
List of Cases from the Supreme Court of Alabama Medlock v. Safeway Insurance Company of Alabama Ex parte Citizens Property Insurance Corporation; Petition for Writ of Mandamus (In re: Garnett v. Citizens Property Insurance Corporation, et al.) Mobile Gas Service Corporation v...

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