Appellate Law

Cases Released December 12, 2008

Posted on December 12, 2008
From the Supreme Court of Alabama: Brown v. ABUS Kransysteme GmbH Alabama Department of Conservation and Natural Resources, et al. v. Exxon Mobil Corporation f/k/a Exxon Corporation Southland Bank v. A&A Drywall Supply Company, Inc. Alabama Department of Corrections v...

Failure to Attach Relevant Documents to Mandums Petition Leads to Denial

Posted on December 12, 2008
In Ex parte Allianz Ins. Co. of North America, [Ms. 1070114] (Ala. Dec. 5, 2008), the Court demonstrated the importance of attaching all necessary documents to a petition for writ of mandamus.  The petitioners sought a writ of mandmus to have an order compelling discovery reversed...

Case Transfered Pursuant to "Interest of Justice" Prong of Forum Non Conveniens Statute

Posted on December 12, 2008
  The increasing importance of the "interest of justice" prong of Alabama's forum non convenuiens statute mandated transfer of a cse in Ex parte Indiana Mills & Mfg., Inc. [Ms. 1070229] (Ala. Dec. 5, 2008).In Ex parte Indiana Mills, a truck crash in Lee County, Alabama killed the driver of the truck...

Claims "Too Intertwined" For 54(b) Certification

Posted on December 10, 2008
Counterclaims could not be certified as final under Rule 54(b), and thus made appealable, where the circuit court had not yet resolved the plaintiff’s “closely intertwined” claims. The 54(b) certification was held improper and the appeal dismissed...

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"Separated" Claim Did Not Yield Final Judgment

Posted on December 09, 2008
A trial court did not enter a final judgment by disposing of a claim that had been separated for trial under Rule 42(b) where another claim remained pending. Hamilton v. CSC Distribution, Inc., No. 2070813 (Ala. Civ. App. Dec. 5, 2008).The plaintiff sued her employer for retaliatory discharge...

Motion to Set Aside Default Judgment Tolls Appeal Deadline; Redundant Rule 59(e) Motion "Not Allowed"

Posted on December 09, 2008
The Court of Civil Appeals ordered the circuit court to set aside a default judgment. In doing so, the appellate court reviewed two less common points of post-judgment procedure. First, a motion to set aside a default judgment suspends the time for taking an appeal until the motion is ruled upon...

Plaintiff's Requested Dismissal May Provide Controverted Final Judgment for Appeal

Posted on December 08, 2008
Before a circuit court may review an appeal, the court must be satisfied that it has jurisdiction.  A statute must confer jurisdiction, and the award that the plaintiff seeks must be within constitutional limits.   Section 1291 permits appeals from final judgments...

Eleventh Circuit Certifies Two Indemnity Questions to Alabama Supreme Court

Posted on December 05, 2008
Before it will decide an appeal from a summary judgment in Ohio Casualty Ins. Co. v. Holcim, No. 07-15931 (11th Cir. Nov. 17, 2008), an action in which the plaintiff seeks indemnity under the terms of a supply agreement for a settlement payment in an underlying personal injury action, the Eleventh Circuit has certified two questions about Alabama indemnity law to the Alabama Supreme Court pursuant to Rule 18 of the Alabama Rules of Appellate Procedure...

Cases Released December 5, 2008

Posted on December 05, 2008
From the Alabama Court of Civil Appeals: Thibodeau v. Thibodeau Hamilton v. CSC Distribution, Inc. Gregory d/b/a Top Flight Construction, Inc. v. Ferguson State Department of Industrial Relations v. Campbell Ex parte Riley, Petition for Writ of Mandamus; In re: Couch v...

Writ of Certiorari is not Substitute for Appeal

Posted on December 04, 2008
A nurse had no avenue for review of an Alabama Board of Nursing consent order reprimanding her for practicing in Alabama without a state nursing license.  The Court of Civil Appeals held that the trial court properly dismissed the nurse's petition for writ of certiorari to set aside the consent order because she voluntarily relinquished her right to appeal in the consent order, and "a common-law writ of certiorari is not available when the petitioner has a right to appeal...

No Justiciable Controversy Supports Appeal Where Parties Agree

Posted on December 04, 2008
In Fenn v. Ozark City Schools Board of Education, No. 1070821 (Ala. Nov. 21, 2008), the Alabama Supreme Court vacated the underlying judgment and dismissed the appeal because the plaintiff and the defendant "had no real differences between themselves," so that there was no controversy for the Court to resolve...

Cases Released November 26, 2008

Posted on December 02, 2008
From the Supreme Court of Alabama: Ex parte Doucette, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Doucette v. State of Alabama Ex parte Davis, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Davis v...

Appeal from Improper Rule 54(b) Order Dismissed

Posted on December 02, 2008
The Alabama Supreme Court dismissed the appeal from the summary judgments in Howard v. Allstate Ins. Co. et al., No. 1071215 (Ala. Nov. 21, 2008).  The trial court entered summary judgment in favor of some of the defendants.  After the trial court certfied the summary judgments as final, over the plaintiffs' objection, the plaintiffs appealed...

Cases Released November 21, 2008

Posted on November 21, 2008
From the Alabama Court of Civil Appeals: Lee v. Alabama Board of Nursing Ashley's Seining v. JMK Farms D.C.L. v. Marion County Department of Human Resources Bishop State Community College v. Thomas Boudreau v. Slaton

Alabama Court of Civil Appeals Dismisses Appeal from Order Entered By Lower Court Lacking Jurisdiction

Posted on November 17, 2008
In Darby v. Schley, the Court of Civil Appeals dismissed an appeal from an order entered by the circuit court in an unlawful-detainer action; because only district courts have jurisdiction over unlawful-detainer actions, the judgment was void and would not support an appeal...

Alabama Court of Civil Appeals Releases Two Cases Showing Different Sides of Final Judgment Rule

Posted on November 17, 2008
On November 14, the Alabama Court of Civil Appeals released two cases involving different  sides of the final judgment rule.Evans v. First National Bank of Jasper, involved an appeal from an action on a promissory note and security agreement...

Alabama Supreme Court Refuses to Review Order Refusing Recusal Where Issue Was Raised for the First Time in Post-Trial Motions

Posted on November 17, 2008
In Greene v. Jefferson Co. Commission, released November 14, 2008, the Alabama Supreme Court refused to review the trial court's order refusing a motion for recusal because the issue was not raised until the post-trial motions stage.Greene arises from litigation filed against the Jefferson County Commission and the General Retirement System for Employees of Jeffersson County involving certain retirement benefits for Jefferson county employees...

Motion to Reconsider Treated as Motion for Protective Order in Case Seeking Mandamus Review of Order Allowing Discovery in Medical Liability Act Case

Posted on November 17, 2008
In Ex parte Gentiva Health Services, Inc., released by the Alabama Supreme Court on November 14, 2008, the court reviewed a trial court's order allowing discovery of privileged materials in a medical malpractice act even though the party against whom discovery was sought had not filed a motion for protective order in the trial court...

Alabama Supreme Court Holds that Wantonness Subject to Six-Year Limitations Period

Posted on November 17, 2008
In Carr v. International Refining & Manufacturing Co., d/b/a IRMCO, No. 1070770 (November 13, 2008), the Alabama Supreme Court held that wantonness claims were subject to the six-year limitations period in 6-2-34(1) of the Alabama Code.  In IRMCO, former employees sued Arvin, their former employer, along with a number of their co-employees, alleging that they had suffered injuries as a result of their exposure to toxic chemicals they used while employed at Arvin...

Cases Released November 14, 2008

Posted on November 14, 2008
From the Alabama Court of Civil Appeals: In the Matter of Anonymous, a minor Smith v. Smith Stewart v. Bradley Evans v. First National Bank of Jasper Darby v. Schley Vulcan Lands, Inc. v. Surtees   From the Supreme Court of Alabama: Carr, et al. v...

Appeal Dismissed Because Rule 54(b) Certification Was Improper

Posted on November 14, 2008
In Hammock v. Wal-Mart Store, Inc., [Ms. 1070939] (Ala. Nov. 7, 2008),  the Alabama Supreme Court dismissed the appeal because it determined that a Rule 54(b) certification was improper.In Hammock, the plaintiff filed a wrongful death suit against Wal-Mart and one of its employees after the plaintiff's decedent was killed by the Wal-Mart employee when the employee struck the decedent with his car while returning from lunch...

Appeal Of Circuit Court's Order Affirming Probate Court Dismissed Because Appeal to Circuit Court Was Untimely

Posted on November 14, 2008
In Williams v. Lollar, [Ms. 2070282] (Ala. Civ. App. Nov. 7, 2008), the probate court entered a judgment on a will contest.  The appellant filed a post-judgment motion, whcih was denied by operation of law.  After the motion was denied by operation of law pursuant to Rule 59...

Void Judgment Will Not Support An Appeal

Posted on November 14, 2008
In M.P. v. C.P., [Ms. 2070644] (Ala. Civ. App. 2070644), the Court of Civil Appeal applied the well settled rule that a void judgment will not support an appeal.  The juvenile court issued a custody order but, on appeal, the father argued that the circuit court, not the juvenile court, had jurisdiction...

Rule 60(b) Motion Is Not A Substitute For An Appeal

Posted on November 14, 2008
In D.L.L. II v. B.J., [Ms. 2070891] (Ala. Civ. App. Nov. 7, 2008), the Court of Civil Appeals reviewed the denial of a Rule 60(b) motion.  First, the Court reversed the denial of a Rule 60(b)(4) motion because the Court had previously held that the order was void for lack of jurisdiction...

Recusal-Based 60(b)(6) Motion Late Where Moving Party Obtained Underlying Document Six Years Earlier

Posted on November 11, 2008
A defendant found no relief from judgment under Rule 60(b)(6) where he had obtained the document supporting his plea for relief six years before he filed his motion. Price v. Clayton, Nos. 2070728, 2070755 (Ala. Civ. App. Oct. 31, 2008). The trial court’s denial of the recusal-based 60(b)(6) motion was affirmed...

Late Administrative Appeal Deprived Circuit Court of Jurisdiction

Posted on November 09, 2008
The State was late in appealing to circuit court from the decision of an administrative law judge. The circuit court therefore never acquired jurisdiction over the case. A subsequent appeal to the Court of Civil Appeals was dismissed as being from a void judgment...

Cases Released November 7, 2008

Posted on November 07, 2008
From the Alabama Court of Civil Appeals: D.L.L. v. B.J. M.P. v. C.P. Dabbs v. Four Tees, d/b/a United True Value J.B. v. DeKalb County Department of Human Resources City of Dothan v. McCleskey McCall v. Alabama State Personnel Board L.A.C. v. T.S.C. and St...

Appeal From Partial Summary Judgment Ordering Injunction Dismissed

Posted on November 07, 2008
In Martin v. Phillips, No. 2070351 (Ala. Civ. App. Oct. 24, 2008), Phillips asserted claims against Martin for trespass, nuisance and taking of riparian rights.  Pursuant to ARCP 54(b), the trial court court certified as final the order in which it granted summary judgment in favor of Phillips on his riparian rights claim and issued an injunction; the summary judgment order acknowledged that the trial court did not decide Phillips's request for damages under the riparian rights claim...

Court Reviews Fair Dismissal Act Decision De Novo

Posted on November 06, 2008
In this appeal from a Fair Dismissal Act proceeding in which employees of Bishop State Community College challenged their terminations on procedural grounds, the Alabama Court of Civil Appeals reviewed de novo the decision of the hearing officers in the administrative proceeding...

"Republican Shaw wins Alabama Supreme Court"

Posted on November 05, 2008
According to this article from the  AP via al.com, Greg Shaw won the race for Justice See's seat on the Alabama Supreme Court with 50.4% of the vote.  This means that Republicans will continue to hold an 8-1 majority after Juste See leaves the bench...

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