Appellate Law

Cases Released October 31, 2008

Posted on October 31, 2008
From the Alabama Court of Civil Appeals: Price v. Clayton J.L.P. v. L.A.M. McConico v. State of Alabama American Heritage Life Insurance Company v. Blackmon Hokes Bluff Welding and Fabrication v. Cox Krawczyk v. State Public Department of Public Safety Gold Kist, Inc...

Court Decides Issue of First Impression for Lenders

Posted on October 29, 2008
Writing for the Alabama Supreme Court on an issue of first impression, Justice See held in Flying J Fish Farm et al. v. Peoples Bank of Greensboro, No. 1061833 (Ala. Oct. 24, 2008), that a lender does not owe a no duty to its borrower to make certain that the project in which the borrower invests is sufficiently feasible to allow repayment of the loan...

Cases Released October 24, 2008

Posted on October 24, 2008
From the Supreme Court of Alabama: Ex parte Alabama Department of Transportation, Petition for Writ of Mandamus; In re: Russell Petroleum, Inc. v. Alabama Department of Transportation Furrow v. Helton Ex parte N.J.J., Petition for Writ of Certiorari to the Court of Civil Appeals; In re: N...

Rule 54(b) Certification Inappropriate Where Claims Are Intertwined

Posted on October 22, 2008
In North Alabama Electric Cooperative v. New Hope Telephone Cooperative, the Alabama Supreme Court dismissed a Rule 54(b) interlocutory appeal because the claim for common law indemnity that was adjudicated by the trial court was intertwined with the claim for contractual indemnity that was still pending before the trial court...

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Appeal Dismissed as from Nonfinal Judgment Where Claims Remain Pending in the Trial Court

Posted on October 22, 2008
In James v. Rane, released by the Alabama Supreme Court on October 17, the court dismissed the appeal as from a nonfinal judgment where claims remained pending in the trial court.The plaintiffs in this title dispute asserted a number of claims, including declaratory judgment, trespass, trespass to chattel, negligence, wantonness, inflication of emotional distress, and the tort of outrage...

Cases Released October 17, 2008

Posted on October 17, 2008
From the Alabama Court of Civil Appeals: McCormick v. Ethridge Chancellor v. White Darnall, et al.  v. Hughes, et al. Norandal U.S.A., Inc. v. Graben   From the Supreme Court of Alabama: Ex parte Bama Concrete and Edwards, Petition for Writ of Mandamus; In re: Mims v...

Eleventh Circuit Judge Anderson to take senior status

Posted on October 16, 2008
According to this article in the Atlanta-Journal Constitution, Eleventh Circuit Judge R. Lanier Anderson, III will take Senior Status at the end of January.  So, the next President will have a vacancy on the Eleveth Circuit bench to fill.

In absence of evidence in record, trial court's judgment is presumed to be supported by the evidence

Posted on October 16, 2008
In Prescott v. Prescott, [Ms. 2070638] (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals affirmed the trial court's judgment on a child custody modification issue.  The mother appeal, but, the record did not contain a transcript, a statement of the evidence under Ala...

Failure to raise argument to trial court precludes consideration on appeal

Posted on October 16, 2008
In Prescott v. Prescott, [Ms. 2070638] (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals refused to consider an argument that the trial court used an improper standard on a child custody determination.  The court refused to consider the argument because it was not raised in the trial court...

Appellate courts do not have jurisdiction over claims for which no appeal has been filed

Posted on October 16, 2008
In two cases, Hendricks v. KW Plastics, Inc., [Ms. 2070324] (Ala. Civ. App. Oct. 10, 2008), and Williams v. Moore, [Ms. 2070284] (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals refused to consider arguments where the arguments related to claims from which no appeal had been filed...

Pro se appellant subject to rules requiring citation to authorities

Posted on October 16, 2008
In Hendricks v. KW Plastics, [Ms. 2070324], (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals refused to consider an argument because it was not supported by sufficient citations to the law.  The fact that the appellant was acting pro se did not change the result...

Trial court must order mediation if requested by a party

Posted on October 16, 2008
In Ex parte Morgan County Commission, [Ms. 1071545] (Ala. Oct. 10, 2008), the County Commission filed a motion requestiong mediation, but the trial court denied the motion.  Citing Ala. Code sec. 6-6-20(b)(2) and Rule 2 of the Alabama Court Mediation Rules, the Alabama Supreme Court held that a trial court erred by not ordering mediation when a party requested mediation:  "Although a trial court has discretion as to whether to stay the proceedings during mediation, the trial court has to order mediation upon the request of a party...

Cases Released October 10, 2008

Posted on October 13, 2008
From the Alabama Court of Civil Appeals: Prescott v. Prescott Jenkins v. State Farm Mutual Automobile Insurance Company Progressive Specialty Insurance Company v. Wilkerson Mousseau v. City of Daphne Board of Zoning Adjustments Hendricks v. KW Plastics, Inc...

Abuse of Discretion Applies to Evidentiary Rulings at Summary Judgment

Posted on October 10, 2008
The Alabama Supreme Court reviews motion for summary judgment de novo; however, when the Court considers whether evidence offered in support of or in opposition to a summary judgment motion will be admissible at trial so that the court may consider it at the summary judgment stage, the Alabama Supreme Court applies the abuse of discretion standard to these evidentiary rulings...

Supreme Court Reviews Issue not Briefed

Posted on October 10, 2008
In Ex parte Auburn University, No. 1070174 (Ala. Oct. 3, 2008), the Alabama Supreme Court considered whether an exception to the sovereign immunity defense applied in the case even though the plaintiffs did not raise the issue in their writ petition concerning the denial of a summary judgment motion...

Evidence Must Show that Trial Court Ruling Injuriously Affected Substantial Rights

Posted on October 10, 2008
In Van Voorst v. Federal Express Corp., No. 105077 (Ala. October 3, 2008), the Alabama Supreme Court refused to reverse a trial court’s denial of the plaintiff’s post-judgment motion without a hearing because the plaintiff did not present evidence that established that her substantial rights were injuriously affected...

Information on Supreme Court Candidates

Posted on October 07, 2008
Justice See's seat on the Alabama Supreme Court will be filled in the election this November.  Running for the office are Democrat Deborah Bell Paseur and Republican  Greg Shaw.  For a short biography of the candidates,  follow the link to an article entitled "Bio information on Ala...

Cases Related on October 3, 2008

Posted on October 03, 2008
From the Alabama Court of Civil Appeals: T.R. v. R.C. North Clarke Water Authority v. Robert Dockery C. Wayland Blake v. John L. Stinson Dagmar Tiller v. YW Housing Partners, Ltd. Brenda Elaine Hobson Williams v. Joseph Davis Hobson Matthew's Masonry Company v...

Lack of Express Postjudgment Ruling Leads to Automatic Denial and Late Appeal

Posted on October 01, 2008
The trial court held a hearing but “did not expressly rule” on a father’s postjudgment motion. Under Rule 59.1, that motion was consequently denied by operation of law 90 days after its filing. An appeal lodged 43 days after the automatic denial was late...

"No Bright Line" Determines When Mandamus Will Be Treated As Appeal; Late "Enlargement" of Judgment Was Not "Correction" Under Rule 60(a)

Posted on September 30, 2008
The Court of Civil Appeals treated a petition for mandamus as an appeal from the denial of a Rule 60(b)(4) motion for relief from a void order. Weaver v. Weaver, No. 2070778 (Ala. Civ. App. Sept. 26, 2008). Moreover, the trial court’s late attempt to substantively revise its earlier judgment was not a clerical “correction” under Rule 60(a) that could be made after the time for ruling on post-judgment motions had expired...

Delegating Division of Assets Made Divorce Judgment Non-Final

Posted on September 30, 2008
A divorce judgment was not final where it delegated to “appropriate” government agencies how the husband’s retirement benefits would be divided. Verren v. Verren, No. 2061054 (Ala. Civ. App. Sept. 26, 2008). The parties’ appeals from that judgment were dismissed for lack of appellate jurisdiction...

Cases Released September 26, 2008

Posted on September 26, 2008
From the Alabama Court of Civil Appeals: Weaver v. Weaver K.A.P. v. D.P. and C.P. Montgomery County Department of Human Resources v. C.R. and B.R. Smith v. Smith Thompson v. Colsa Corporation Ravenel v. Burnett Alabama Department of Public Safety v. Barbour Leonard v...

Alabama Supreme Court Provides Detailed Look at Reasonable Reliance Standard

Posted on September 24, 2008
In AmerUs Life Ins. Co. v. Smith, the Alabama Supreme Court reversed a $6,500,000 verdict in favor of the plaintiff on his fraud claim and provided a helpful discussion of the reasonable reliance standard.   In AmerUs, the Smiths sued AmerUs Life Insurance Company alleging fraud in connection with the sale of a life insurance policy...

Court of Civil Appeals Discusses Ore Tenus Standard of Review

Posted on September 22, 2008
In Baldwin v. Panetta, released September 19, 2008, the Court of Civil Appeals discussed the ore tenus standard of review. In Baldwin, the plaintiff builders appealed from a judgment in favor of the defendant owners.  Following a two-day bench trial, the circuit court entered a judgment in favor of the owners on the builders'  breach of contract claim and on the owners' breach of contract and fraud counterclaims...

Another Appeal Dismissed for Lack of SJIS Input

Posted on September 22, 2008
The appellants in Bolden v. Wise Alloys, LLC, released September 19, 2008, became the most recent to see an appeal dismissed because the judgment was not input into SJIS.  As both the Alabama Supreme Court and the Alabama Court of Civil Appeals have pointed out, a judgment is not final unless it is input into the State Judicial Information System ("SJIS")...

Cases Released September 19, 2008

Posted on September 19, 2008
From the Alabama Court of Civil Appeals: Bolden v. Wise Alloys, LLC Baldwin and Kelly, d/b/a Baldwin Construction Company v. Panetta

Motion to set aside default judgment may be denied by operation of law where motion is not properly supported

Posted on September 18, 2008
In Carroll v. Williams, [Ms. 1060832], (Ala. Sept. 12, 2008), the Alabama Supreme Court held that "[b]ecause Carroll has failed to satisfy his initial burden under Kirtland, we wil not hold the trial court in error for allowing Carroll's motion to set aside the default judgment to be denied by operation of law without having applied the Kirtland analysis...

Non-Party lacks standing to appeal

Posted on September 18, 2008
In McCollum v. Keating, [Ms. 2061182], (Ala. Civ. App. Sept. 12, 2008), the Court of Civil Appeals dimissed an appeal by a non-party, finding that the non-party lacked standing.Pursuant to a protective order entered by the trial court, non-party appellant McCollum was required to store a wrecked vehicle...

Rule 60(b) motion is not a substitute for a Rule 77(d) extension

Posted on September 16, 2008
When a party is not notified of an appealable order, the only way to extend the time to appeal is by a Rule 77(d) extension, not a Rule 60(b) motion.   In Gullett v. Gullett, [Ms. 2070007] (Ala. Civ. App. Sept. 12, 2008), the Court of Civil Appeals dismissed an appeal as untimely where the appellant incorrectly filed a Rule 60(b) motion for relief from judgment instead of seeking a Rule 77(d) extension...

Untimely Appeal Dismissed

Posted on September 15, 2008
The pitfalls of Rule 59.1 are on display in Scott v. Lenoir, [Ms. 2040891] (Ala. Civ. App. Sept, 12, 2008), and an appeal was dimsissed as untimely.In Scott, the appellant timely filed his post-judgment motions, but the trial court did not rule within 90 days...

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