Appellate Law

Cases Released March 26, 2010

Posted on March 26, 2010
From the Alabama Court of Civil Appeals: Ex parte Arlington Properties, Inc.; Petition for Writ of Mandamus (In re: Arlington Properties, Inc. v. Brown) Walker v. Capstone Building Corporation K.C.G. v. S.J.R. Sagamore Insurance Company v. Sudduth McWane, Inc...

Court Discusses Admissibility of Summary Judgment Affidavits

Posted on March 19, 2010
In summary judgment proceedings, it is well-settled that parties may rely only on evidence that would be admissible at trial.  In Stephens v. First Commercial Bank, No. 1080648 (Ala. March 12, 2010), Stephens argued that he had no obligation to present evidence in opposition to the bank's summary judgment motion on its claim for breach of a promissory note because the affidavit that the bank offered in support of its motion violated the best evidence rule and the prohibition against hearsay...

Court Infers Final Judgment on Counterclaim in Ore Tenus Proceeding

Posted on March 19, 2010
Ordinarily, an appellate court lacks jurisdiction if the order from which a party appeals is not a final order.  In Kennedy v. Boles Investment, Inc., No.1080607 (Ala. March 12, 2010), the Alabama Supreme Court found that under the unusual circumstances of that ore tenus proceeding, the Court had jurisdiction over the appeal even though the trial court did not expressly dispose of all of the claims and counterclaims in the order at issue...

Court Discusses Unusual Standards of Review

Posted on March 19, 2010
In two of the opinions that it issued last week, the Alabama Supreme Court discussed standards of review that receive attention less frequently than others.  In Intergraph Corporation et al. v. Bentley Systems Incorporated, Nos. 1080300, 1080405  (Ala...

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Cases Released March 19, 2010

Posted on March 19, 2010
From the Alabama Court of Civil Appeals: G.UB.MK Constructors v. Davis Complete List of Cases from the Alabama Court of Civil Appeals   From the Alabama Supreme Court: Ex parte Little; Petition for Writ of Certiorari to the Court of Criminal Appeals (In re: Little v...

Cases Released March 12, 2010

Posted on March 15, 2010
From the Alabama Court of Civil Appeals: Cooking v. City of Montgomery Ex parte State Department of Human Resources; Petition for Writ of Mandamus (In re: The Matter of R.H.J. and In re: The Matter of S.H.) Mattes v. Mattes Brooks v. Franklin Primary Health Center, Inc...

Gaps in Divorce Record Force Reversal

Posted on March 11, 2010
The trial court incorporated a 'partial agreement' between the parties into its final divorce judgment. The record on appeal contained no written evidence of that agreement, however, and the trial court had not received evidence on any contested issue...

Stipulated Facts Bring De Novo Review

Posted on March 11, 2010
 Where the circuit court received only arguments on a stipulated factual record, the appeals court gave the circuit court's judgment 'no presumption of correctness,' and so reviewed that judgment under a de novo standard. Ex parte Ala. Dept...

Law of the Case Did Not Bar Trial Court From Explaining and Reentering Judgment

Posted on March 10, 2010
 The Court of Civil Appeals, on the first appeal of this case, held that the circuit court had wrongly considered evidence outside the pleadings in granting a motion to dismiss. On remand, the circuit court explained that, in fact, its decision had depended on nothing outside the pleadings...

Cases Released March 5, 2010

Posted on March 05, 2010
From the Alabama Court of Civil Appeals: Ex parte Kish; Petition for Writ of Mandamus (In re: Kish v. TruGreen Limited Partnership) Eaton v. Waldrop Complete List of Cases from the Alabama Court of Civil Appeals

Cases Released February 26, 2010

Posted on February 26, 2010
From the Alabama Court of Civil Appeals: Drees v. Turner Strange v. Davis Long v. Long Boone et al. v. Birmingham Board of Education Willis v. Willis Baker v. Kennedy McLeod v. White Complete List of Cases from the Alabama Court of Civil Appeals   From the Alabama Supreme Court: Ex parte Alabama Department of Revenue; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Kimberly-Clark Corporation v...

Alabama Sports Artist's Appeal Endangered By Failure to File Record Excerpts

Posted on February 24, 2010
This article highlights the dire consequences that famed Alabama sports artist Daniel Moore faces for his attorney's misunderstanding of the Eleventh Circuit's record excerpts rules.      

Cases Released February 19, 2010

Posted on February 19, 2010
From the Alabama Court of Civil Appeals: Ross v. Lewis Complete List of Cases from the Alabama Court of Civil Appeals   From the Alabama Supreme Court: Ex parte Ward; Petition for Writ of Certiorari to the Court of Criminal Appeals (In re: Ward v...

Argument Must Be Raised To Trial Court To Preserve For Appeal

Posted on February 18, 2010
In this interesting case involving Homeowners' Associations, restrictive covenants, and what actually is an acceptable driveway, one of the issues was disposed of on appeal because it was not raised first  to the trial court.  Grove Hill Homeowners' Association, Inc...

Order Valid If Judge Renders and Directs Entry of Judgment But Order Not Entered Until After Judge Leaves Office

Posted on February 18, 2010
The unique scenario of where the trial court judge renders a judgment just before his term of office ends, but the judgment was not entered until after the judge's term ended,  was presented in Gilliam v. Gilliam, [Ms. 2080856] (Ala. Civ. App. Feb...

Cases Released February 12, 2010

Posted on February 17, 2010
From the Alabama Supreme Court: Weatherspoon v. Tillery Body Shop, Inc. Ex parte DePaola; Petition for Writ of Mandamus (In re: Danny Clements Builder, Inc. v. Willcutt) Complete List of Cases from the Alabama Supreme Court

Void Judgment Will Not Support Appeal

Posted on February 12, 2010
In Claridy v. Claridy, [Ms. 2080385] (Ala. Civ. App. Feb. 5, 2010), the Court of Civil Appeals dismissed an appeal as being from a void judgment after the order was entered after the post-judgment motion had already been denied by operation of law...

Party Must Move For Judgment As a Matter of Law at Close of All Evidence to Raise Issue on Appeal

Posted on February 12, 2010
In Skerlick v. Gainey, [Ms. 2080673] (Ala. Civ. App. Feb. 5, 2010), the Court of Civil Appeals held that a party waived the ability to challenge the sufficiency of the evidence on appeal because the party did not renew its motion for judgment as a matter of law at the close of all the evidence...

Non-Final Judgments Will Not Support Appeal

Posted on February 12, 2010
The well-settled rule that a non-final judgment will not support an appeal resulted in two appeals being dismissed by the Court of Civil Appeals.  In both Faulk v. Rhodes, [Ms. 2081005] (Ala. Civ. App. Feb 3, 2010), and Sexton v. Sexton, [Ms. 2080852] (Ala...

Rehearing Denied Where Party Merely Repeated Principal Arguments

Posted on February 11, 2010
The Court of Civil Appeals denied a rehearing where the appellant merely repeated the arguments he had made in his principal submissions. G.P. v. Houston County Dept. of Human Resources, No. 2080591 (Ala. Civ. App. Jan. 29, 2010).In asking for a rehearing, an appellant father 'argue[d] again that the trial court erred in terminating his parental rights...

Circuit Court Lacked Jurisdiction to Rule On Late 60(b)(1) Motion

Posted on February 11, 2010
A father moved under Rule 60(b) to set aside a child support order that had been entered ten months earlier. Though he specified no specific part of Rule 60(b), his motion could be construed as coming only under Rule 60(b)(1). Such motions must be brought within four months of the challenged order...

Successive 60(b) Motions Not Allowed

Posted on February 10, 2010
The circuit court denied a plaintiff's Rule 60(b) motion. The plaintiff then filed a second, 'identical' Rule 60(b) motion. The circuit court correctly recognized that it had no jurisdiction to entertain the second motion. Barnes v. Alternative Capital Source, LLC, No...

Three Sentences In Appellate Brief Did Not Make Sufficient Argument

Posted on February 10, 2010
The Court of Civil Appeals refused to consider an argument that was supported by only three short sentences that cited no legal authority. That argument was inadequate under Rule 28 of the Alabama Rules of Appellate Procedure and was effectively waived...

Trial Court Could Not Enter Permanent Injunction While Appeal Was Pending

Posted on February 10, 2010
A trial court had no jurisdiction to enter a permanent injunction while an appeal from its earlier decision, granting a preliminary injunction, was pending. The permanent injunction was void and would not support an appeal. Searle v. Vinson, Nos. 2080760, 2081155 (Ala...

Mandamus Treated As Appeal of Final Workers' Compensation Judgment -- Court Notes "Tension" In Precedent And Follows "Emerging" Rule

Posted on February 10, 2010
The Court of Civil Appeals treated a mandamus petition as an appeal from a 'final judgment' in this workers' compensation suit. The court recognized that this 'emerging' practice of treating certain workers' compensation decisions as final and appealable is 'in tension' with some existing precedent...

Cases Released February 5, 2010

Posted on February 08, 2010
From the Alabama Court of Civil Appeals: Grove Hill Homeowners' Association, Inc. v. Rice M.H. v. Jefferson County Department of Human Resources K.P. v. Etowah County Department of Human Resources Faulk v. Rhodes et al. In the Matter of the Adoption of F...

Case Released February 4, 2010

Posted on February 08, 2010
From the Alabama Supreme Court: Tyson v. Macon County Greyhound Park, Inc., d/b/a VictoryLand Complete List of Cases from the Alabama Supreme Court

Cases Released January 29, 2010

Posted on January 29, 2010
From the Alabama Court of Civil Appeals: Yeager v. Winstead Barnes v. Alternative Capital Source, LLC Nelson v. Estate of Nelson Belcher-Robinson Foundry, LLC v. Narr Searle v. Vinson Nance v. Southerland Noll v. Noll G.P. v. Houston County Department of Human Resources Roberson v...

Recent Pronouncements Regarding Applicable Standards of Review

Posted on January 26, 2010
The Alabama Supreme Court and the Alabama Court of Civil Appeals recently stated the standards of review applicable to contempt orders and orders granting permanent injunctions.  In Hull v. Hull, released January 22, 2009 by the Alabama Court of Civil Appeals, the court reiterated the standard to be applied when reviewing a contempt judgment: The standard of review of a judgment of contempt is as follows: Whether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm...

Dependency Adjudications Constitute Final Appealable Judgments

Posted on January 25, 2010
In M.H. v. W., No. 2080693 (Ala. Civ. App. Jan. 15, 2010), the Court of Civil Appeals reviewed the conditions under which a party may appeal from a dependency adjudication.  Quoting P.P. v. Limestone County Dep't of Human Res., No...

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