Appellate Law

Citation to a Statute Satisfies Ala. R. App. P. 28(a)(10)

Posted on February 26, 2008
In V.W. v. G.W., [Ms 2060902] (Ala. Civ. App. Feb. 22, 2008) , the Court of Civil Appeals commented on the adequacy of citation of authority in a brief's argument, and held that citation to a statute was sufficient to satisfy Ala. R. App. P. 28(a)(10)...

Cases Released on February 22, 2008

Posted on February 25, 2008
From the Alabama Court of Civil Appeals:Tyler v. TylerGoetsch v. GoetschClement v. SpannFeria v. SotoV.W. v. G.W. From the Alabama Supreme Court:Hilb, Rogal & Hamilton Co. v. Werner BeiersdoeferWood v. Booth Garlington v. State of AlabamaMcNabb v...

Faxed Notice of Appeal Not "Filed," Not Effective

Posted on February 19, 2008
A notice of appeal is not “filed” and effective if it is only faxed to the court clerk. L.M. v. Shelby County Dept. of Human Resources, No. 2060860 (Ala. Civ. App. Feb. 15, 2008). The Court of Civil Appeals ruled that a faxed notice of appeal, that was otherwise timely, did not invoke its jurisdiction, and dismissed the appeal...

Determination of "Separate" Boundary Line Issue Not A Final Judgment

Posted on February 19, 2008
The trial court “bifurcated” and decided one issue in a property line dispute, but reserved other issues for later decision. This did not constitute a final judgment from which an appeal would lie. The defendants’ attempt to gain review of the partial order was dismissed...

To access this complete feed in the blog feed reader login or register for free.

Rule 59.1 Extensions Squandered

Posted on February 19, 2008
After obtaining two effective post-judgment extensions under Rule 59.1, a husband failed to appeal within 42 days of the circuit court’s order, and saw his appeal dismissed as untimely. Smith v. Smith, No. 2061150 (Ala. Civ. App. Feb. 15, 2008)...

Cases Released February 15, 2008

Posted on February 15, 2008
From the Alabama Court of Civil Appeals:Smith v. SmithCurvin v. CurvinWeinrib, in his official capacity as Jefferson County Tax Assessor v. WolterHawk v. Roger Watts Insurance Agency et al.J.P. v. S.S. and C.S.L.M. v. Shelby County Department of Human ResourcesBrewton v...

Eleventh Circuit Offers Cautionary Note on Pleading, Briefing

Posted on February 13, 2008
In an opinion that addresses a variety of Title VII claims, the Eleventh Circuit Court of Appeals offered the following comments about the impact that “shotgun pleadings” have on the federal courts:[T]he mischief shotgun pleadings causes undermines the public’s respect for the courts – the ability of the courts to process efficiently, economically, and fairly the business placed before them...

Court of Civil Appeals Rejects Constitutional Challenge to Add-Back Tax Statute

Posted on February 12, 2008
The Court  of Civil Appeals' opinion in Surtees v. VFJ Ventures, Inc., No. 2060478 (Ala. Civ. App. Feb. 8, 2008), contains an interesting, lengthy discussion of Alabama's add-back statute.  After it rejected the reasons that appellee VFJ offered to support the trial court’s finding that the corporate income tax assessment that the Alabama Department of Revenue made against VFJ pursuant to Alabama’s add-back statute was in error, the Court of Civil Appeals reviewed, and ultimately refused, VFJ’s constitutional challenge to the statute...

Court Reaches Merits of Cert Petition though Brief Non-Compliant

Posted on February 11, 2008
Although the petitioner’s brief did not contain all of the sections that ARAP 28 mandates, the Alabama Supreme Court entertained the petitioner’s request for a writ of certiorari to the Alabama Court of Civil Appeals.  Ex parte Cleghorne,  No...

Court of Civil Appeals Has Jurisdiction to Issue Writ of Mandamus

Posted on February 11, 2008
A writ of mandamus provides a party with extraordinary relief because it permits appellate relief from a trial court order before a final judgment. To obtain a writ of mandamus, a party must demonstrate that he has a “clear legal right” to the requested relief; the respondent has an imperative duty which the respondent has refused to perform; the petitioner lacks an alternative remedy; and the appellate court has jurisdiction over the matter...

Cases Released February 8, 2008

Posted on February 08, 2008
From the Alabama Court of Civil Appeals:Ex parte Steve Cagle Trucking Company, In re: Cagle v. Steve Cagle Trucking CompanySurtees, in his official capacity as commissioner of the Alabama Department of Revenue, and the Alabama Department of Revenue v...

Failure to Renew Evidentiary Objections Raised in Motion in Limine Waives Appellate Review

Posted on February 04, 2008
Baldwin County Electric Membership Corp. v. City of Fairhope, No. 1060475 (Ala. February 1, 2008) serves as a good reminder of the requirement that evidentiary objections made in motions in limine must generally be renewed at trial in order to be preserved for appellate review...

Motion for Award of Costs and Fees is Not a Post-Judgment Motion Pursuant to Rule 59

Posted on February 04, 2008
In Ford v. Jefferson County and Jefferson County Juvenile Services, No. 2060169 (Ala. Civ. App. February 2, 2008), the court held that a post-trial request for costs and fees is not a post-judgment motion pursuant to Rule 59.  Therefore, it was not subject to the 30-day time requirement set forth in Rule 59(e)...

Yet Again, the Failure to File A Timely Notice of Appeal Results in the Dismissal of that Appeal

Posted on February 04, 2008
For yet another example of the dismissal of an appeal based on the untimely filing of a notice of appeal, see J.T. v. A.B., No. 206057.   

Cases Released February 1, 2008

Posted on February 01, 2008
From the Alabama Court of Civil Appeals:V.G. v. Madison Department of Human ResourcesLocker v. City of St. Florian, et al.Dauphin Island Property Owners Association, Inc. v. PittsVann v. CookJ.T. v. A.B.Ford v. Jefferson CountyKovakas v. KovakasRussell v...

Void Judgment Will Not Support An Appeal

Posted on January 28, 2008
In K.R. v. D.H., [Ms. 2061119] (Ala. Civ. App. Jan. 25, 2008), the Court of Civil Appeals dismissed an appeal for lack of jurisdiction because the trial court did not have jurisdiction over the underlying dispute.  The court held that "because a judgment entered without subject-matter jurisdiction is void ...

Time To Appeal Runs From Date of Order Which Indicated Issues Were Resolved Against A Party

Posted on January 28, 2008
Although the date of a Rule 60(a) order correcting a scrivener's error generally relates back to the date of the original order, in Brown v. Brown, [Ms. 2050935] (Ala. Civ. App.  Jan. 25, 2008) , the Alabama Court of Civil Appeals held that an appeal was timely where it was filed within 42 days of the Rule 60(a) order where that order was the first time the party knew the trial court had ruled against it...

Alabama Supreme Court Overrules Garrett v. Raytheon; Claim For Exposure To Toxic Substance Now Accrues When There Is A Manifest Injury

Posted on January 28, 2008
In a major change in Alabama toxic tort law, the Alabama Supreme Court overruled Garrett v. Raytheon, 368 So. 2d 516 (Ala. 1979), which had established the "date of last exposure" test for accrual of a cause of action based on exposure to a toxic substance...

Cases Released January 25, 2008

Posted on January 25, 2008
From the Alabama Court of Civil Appeals:K.R. v. D.H.M.R.D. v. T.D.Springfield Missionary Baptist Church v. WallBrown v. BrownPatel v. Management Enterprise Development and Services, Inc., et al. From the Supreme Court of Alabama:Ex parte Sabrina Johnson et al...

Notice of Appeal Effective Even If Signed By Foreign Lawyer Not Admitted Pro Hac Vice

Posted on January 23, 2008
An appeal could not be dismissed merely because the notice of appeal was signed by an out-of-state lawyer, even if that lawyer was not admitted pro hac vice in Alabama. Ex parte Taylor, No. 1051315 (Ala. Jan. 18, 2008). Though a criminal case, Taylor has obvious relevance to civil practice...

Landowner Waived Ownership Issue By Failing to Provide Authority and Argument

Posted on January 23, 2008
A landowner waived the issue of whether he owned a watercourse by making only a cursory claim of ownership in his appellate brief, but failing to cite legal authority or make legal arguments to support that claim. Harper v. Coats, No. 1050145 (Ala...

Constitutionality of Statute Considered Only If Essential to Appeal

Posted on January 23, 2008
The Court of Civil Appeals refused to consider a statute’s constitutionality, where deciding the constitutional question was not necessary to resolving the appeal. Nichols v. Nichols, No. 2060417 (Ala. Civ. App. Jan. 18, 2008).This case involved a mother’s attempt to modify a divorce judgment so that she could move her minor daughter out of Alabama...

Supreme Court Vacates Trial Court's Order Denying Motion to Dismiss Suit Against "Borat"; Forum Selection Clause Valid

Posted on January 20, 2008
In Ex parte Sacha Baron Cohen, [Ms. 1061288] (Ala. Jan. 18, 2008), the Alabama Supreme Court, in a unanimous opinion, vacated the trial court's order denying the motion to dismiss filed by  Sacha Baron "Borat" Cohen and other defendants...

Cases Released on January 18, 2008

Posted on January 18, 2008
From the Alabama Court of Civil Appeals:Giardina v. GiardinaJackson v. State Farm Fire and Casualty CompanyDean v. DeanRamsey v. RamseyEdwards v. Intergraph Services Company, Inc.Nichols v. NicholsHealth Care Authority of Athens and Limestone County v...

Court Reviews Appeal Under Mootness Exception

Posted on January 18, 2008
The Alabama Supreme Court conducted an unusual review of an appeal in Bright v. Calhoun, No. 1061146 (Ala. January 11, 2008). Although the issue on appeal was moot, the Court agreed to review the appeal because the issue was capable of repetition but evaded review under the circumstances of the appeal...

Appellate Courts Hold Firm on Waiver

Posted on January 18, 2008
In a number of opinions released on January 11, 2008, the Alabama Supreme Court noted arguments that parties waived in their appellate briefs.  See Roper v. Rhodes, No. 1060331, p. 4 n. 4 (Ala. Jan 11, 2008)(plaintiff waived appellate review of trial court’s holding that secretary of state was not proper party to election contest because plaintiffs did not include argument pertaining to the issue in their appellate brief); DiBiasi et al...

Enforcement Proceedings Do Not Disturb the Finality of Judgment

Posted on January 18, 2008
A judgment does not lack finality simply because a trial court labels the judgment nonfinal. Trial court proceedings to enforce a judgment do not “disturb the finality of judgment.” Measures taken to enforce a judgment do not become “a vehicle to extend indefinitely the life of the lawsuit...

Appeal Dismissed; Trial Court Lacked Jurisdiction

Posted on January 17, 2008
In Roper v. Rhodes, No. 1060331 (Ala. Jan 11, 2008), the Alabama Supreme Court reviewed an appeal from a trial court order in an election contest. The Court dismissed the appeal, finding that the trial court lacked subject matter jurisdiction over the plaintiffs’ claim because the plaintiffs did not follow the procedure set forth in Ala...

"Pavillion Development, LLC v. JBJ Partnership: The Court's Struggle With Waiver"

Posted on January 17, 2008
Our own Madeline Haikala has a great article published in this Month's The Alabama Lawyer magazine.  The article is entitled "Pavilion Development, LLC v. JBJ Partnership: The Court's Struggle With Waiver."  The article discussed the recent Pavillion Development case and what it means to the appellate practitioner considering issues of waiver in the Alabama courts...

Cases Released January 11, 2008

Posted on January 14, 2008
From the Alabama Court of Civil Appeals:Dabbs v. SRE, Inc., d/b/a Southern Real EstateB.H. v. R.E., Jr.S.P. v. V.T. From the Supreme Court of Alabama:Roper v. RhodesDiBiasi v. Wheeler Electric Membership Corp.First Properties, L.L.C. v. JP Morgan Chase Bank, National AssociationBright v...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.