Alabama Appellate Watch

Cases Released July 10, 2009

crosler@lfwlaw.com (Craig N. Rosler) — Fri, 10 Jul 2009 16:32:39 -0600

From the Alabama Supreme Court:

Lucky Jacks Entertainment Center, LLC v. Jopat Building Corporation et al.

Complete List of Cases from the Alabama Supreme Court

From the Alabama Court of Civil Appeals:

Palisades Collection, LLC v. Delaney

Bedgood v. McConico

Complete List of Cases from the Alabama Court of Civil Appeals

Alabama Supreme Court Reverses Grant of Summary Judgment in Builder and Landlord's Favor in Case Arising Out of Apartment Fire Set By Arsonist: Neither Intervening Intentional Act of Third Party Nor Rule of Repose Barred Claims

njordan@lfwlaw.com (Nikaa Jordan) — Wed, 08 Jul 2009 09:40:59 -0600

In Collins. v. Scenic Homes, No. 1070875, consolidated with Kilgore v. Scenic Homes, Nos. 1070975, and Hopkins v. Scenic Homes, No. 1070976, the Alabama Supreme Court held that neither the intentional criminal act of arson nor the twenty year rule of repose barred tort claims against the builder who constructed an apartment complex twenty-two years before that apartment was intentionally set on fire and the landlord who operated it. The Court held that the “criminal acts of a third party” defense did not apply because the plaintiff did not allege that the defendants had a duty to prevent the arson. Further, the rule of repose did not bar the claims against the builder because, the Court held, the common law repose period began to run at the time of injury, not at the time of completion of the building.

In 1982, Scenic Homes began building Hunters Ridge, an apartment development. It was undisputed that Scenic Homes did not use a licensed architect to design the plan and to draft the building specifications. Scenic Homes sold Hunters Ridge in the 1980s. It was owned by Jonathan Russell and a limited liability company in which Russell was principal at the time of the fire. In the early morning hours of August 12, 2004, Henry Rice intentionally set a fire at Hunters Ridge, causing the death of one resident and injuries to several others. The residents sued both Russell and Scenic Homes, alleging negligence and wantonness.

Both defendants moved for summary judgment. Both Scenic Homes and Russell argued that Rice’s criminal act relieved them of any liability. Scenic Homes also argued that the claims against it were barred by the twenty-year rule of repose.

The trial court granted summary judgment in favor of Scenic Homes and Russell on these grounds, but the Alabama Supreme Court reversed on both counts.

The court acknowledged the long line of cases which hold that a premises owner is not responsible for injury or damage to another on the premises caused by the intervening criminal act of a third party. Those cases, the court reasoned, involve allegations that the premises owner had a duty to prevent the intervening criminal act from occurring. In other words, the plaintiffs in those cases argued that the negligence of the premises owner occurred before the criminal act. Here, by contrast, the residents alleged that Scenic Homes had a duty to construct and Russell had a duty to operate a reasonably safe apartment building, equipped with appropriate exists and fire-suppression safeguards designed to reduce the risk of injury as a result of a fire (read: after a fire), regardless of the origin of the fire. The well-settled cases which hold that there is no duty to protect against the criminal acts of a third party were therefore inapplicable. The only question was whether it was foreseeable that the inability to escape from a fire would cause the type of injuries the plaintiffs alleged. The court easily found that risk to be foreseeable and reversed the trial court’s order finding no duty existed.

The court next turned to Scenic Homes’s rule of repose argument. Quoting extensively from common law rule of repose cases, including Ex parte Liberty National Life Ins. Co., 825 So.2d 758 (Ala. 2002), the court emphasized the language in those cases indicating that the rule of repose applied to bar claims which “could have been asserted” or plaintiffs “who slept on their rights.” The court then reasoned:

The residents contend that the 20-year common-law rule of repose does not bar their action against Scenic Homes because, they say, they did not have the right to sue until after the fire occurred. We agree….In this case, the residents did not have a viable and cognizable claim against Scenic Homes until the fire occurred and the residents suffered injuries as a result of the fire. Only then did the residents have a right to sue. Thus, because the 20-year common-law rule of repose is premised upon a preexisting right to assert a claim and because the residents did not have such a right until the fire occurred and they sustained injuries as a result of an alleged breach of duty by Scenic Homes and because the residents sued within 20 years of their injuries, the rule of repose is inapplicable to this case.

Accordingly, the court determined that the trial court erred in entering summary judgment in favor of Scenic Homes based on the rule of repose.

Justice Murdock, joined by Justice Shaw, dissented on the repose issue. Justice Murdock noted that Alabama law was conflicted in this area, and that the general definition of a rule of repose indicated that the repose period would begin to run at the time of completion of the action giving rise to liability.

Defendant's Failure to Advance Multiple and Alternative Grounds at Motion to Dismiss Stage Circumscribes Alabama Supreme Court's Review

njordan@lfwlaw.com (Nikaa Jordan) — Tue, 07 Jul 2009 16:26:30 -0600

In Gilmer v. Crestview Memorial Funeral Home, Inc., released on June 30, 2009, the court’s review was restricted to only the grounds on which the defendants had moved to dismiss the plaintiff’s claims: that violation of section 34-13-112 of the Alabama Code did not create a private right of action. Because the plaintiff did not argue that no such private right of action existed, the only question on appeal was whether her claims were based solely on that provision. They were not and the trial court’s grant of summary judgment in the defendant’s favor was reversed with no requirement that the plaintiff put forth substantial evidence in support of her claims.

The plaintiff in Gilmer alleged a number of acts against the funeral home that embalmed, buried, and orchestrated the funeral arrangements for her husband. Primary among these was the failure to use a licensed embalmer when preparing her husband’s body for burial, in violation of Ala. Code 34-13-12. In the motion to dismiss, the defendants argued that section 34-13-112 did not create a private right of action and that a violation of it did not constitute negligence per se. In opposition, the plaintiff did not argue the contrary, but argued that the claims asserted in her complaint constituted valid common law causes of action that were not based solely on section 34-13-12; her references to section 34-13-112 in her complaint were only to help establish some of the elements of her common-law claims.

The Court held that the narrow grounds of the defendant’s motion for summary judgment precluded it from reviewing (as it normally would at the summary judgment stage) whether or not the plaintiff had presented substantial evidence of every element of each of her claims. Because the defendant’s motion was based only on the argument that the plaintiff had no private right of action under section 34-13-112, no other response from the plaintiff was required and no other burden need be satisfied.

On appeal, the plaintiff conceded that section 34-13-112 did not provide a private right of action and argued that her claims were not based thereon. The court agreed that her claims did not arise solely under section 34-13-112. Having determined that, the order granting summary judgment was due to be reversed as the defendant failed to challenge whether the plaintiff had put forth substantial evidence of her common law claims in the event those claims were not based solely on section 34-13-112.

Alabama Supreme Court Denies Petition for Writ of Mandamus Directing the Trial Court to Enter Protective Order Prohibiting Discovery Relating to Plaintiff's Sexual History

njordan@lfwlaw.com (Nikaa Jordan) — Tue, 07 Jul 2009 16:19:49 -0600

In In re Laura Kay Carlisle v. Thomas G. Moore and Atmore Animal Hospital, LLC, No, 1080038, released June 30, 2009, the Alabama Supreme Court denied the plaintiff’s petition seeking a writ of mandamus directing the trial court to enter a protective order prohibiting discovery of evidence relating to the plaintiff’s sexual history. In so doing, the court provided a glimpse into just how difficult it is to successfully mandamus a discovery order.

The plaintiff in Carlisle alleged various torts stemming from sexual misconduct directed toward her while she was employed at a veterinary clinic. During her deposition, the defendant’s attorney asked a line of questions regarding the plaintiff’s general past sexual contact. The plaintiff sought a protective order, but the trial court denied her motion. The plaintiff then petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to enter an order prohibiting all discovery of the plaintiff’s sexual history unless such conduct involved the defendant or occurred at the workplace she shared with the defendant.

Not surprisingly, the court denied the petition. In doing so, it held forth at length regarding the standard which must be satisfied before a writ of mandamus regarding a trial court’s discovery order will issue. It stated:

The utilization of a writ of mandamus to compel or prohibit discovery is restricted because of the discretionary nature of a discovery order. The right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief. The writ will not issue where the right in question is doubtful.

The court further stated that it employs a two-part standard for reversing a trial court’s discovery ruling in response to a mandamus petition: (1) [whether] there is a showing that the trial court clearly exceeded its discretion, and (2) [whether] the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.

Appellate review of a discovery order by mandamus generally will not be available except in “exceptional cases,” as an appeal is normally adequate to protect a party’s rights. These illustrative exceptional cases include:

(1) when a privilege is disregarded;

(2) when a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party;

(3) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome has been all but determined, and the petitioner would be merely going through the motions of a trial to obtain an appeal; or

(4) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that the appellate court cannot review the effect of the trial court’s alleged error.

While this list is not exhaustive, the court indicated that these four are the most common examples. The plaintiff did not argue that the discovery she sought to prohibit fell within one of the four exceptional cases or that one of those categories should be expanded to address deposition testimony of the type sought by the defendant. While she did argue the two part standard, the court found that she failed to satisfy it because she did not demonstrate that the trial court “clearly exceeded its discretion” in allowing the defendant’s counsel to question her regarding her sexual history.

Moreover, while the plaintiff did not argue overlap with the second exceptional case – patently irrelevant material-- the court noted that it would not be inclined to find that hers was such because of the nature of her allegations. The court noted that the defendant intends to show that his conduct vis-à-vis the plaintiff, although it occurred in the workplace, was consensual and that the plaintiff’s sexual history is relevant to the level of offense she felt from the acts she alleges he committed. The court could not say that such evidence was “patently irrelevant” under those circumstances.

Nor could the privacy implications relating to discovery of the plaintiff’s past sexual conduct be found to implicate the exceptional case of privilege, as it remained to be seen whether and to what extent that history will have a material bearing on the merits of the claims and issues that the plaintiff herself raised.

Accordingly, the court denied the plaintiff’s petition for writ of mandamus.

Cases Released June 30, 2009

icooper@lfwlaw.com (Ivan B. Cooper) — Tue, 30 Jun 2009 16:58:59 -0600

From the Supreme Court of Alabama:

Ex parte Carlisle; Petition for Writ of Mandamus (In re: Carlisle v. Moore)

Collins v. Scenic Homes, Inc., et al.

Ex parte Brown; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Brown v. Brown)

Gilmer v. Crestview Memorial Funeral Home, Inc., et al.

Complete List of Cases from the Supreme Court of Alabama

From the Alabama Court of Civil Appeals:

D.P. v. Limestone County Department of Human Resources

Rodgers v. Turberville

B.J.K.A. v. Cleburne County Department of Human Resources

Miller v. Miller's Landing, L.L.C.

Stenler v. Stenler

Hale v. Kroger Limited Partnership I

Dollar General Corporation v. Nelson

Complete List of Cases from the Alabama Court of Civil Appeals

Eleventh Circuit Applies Unusual "Extremely Stringent" Standard of Review

mhaikala@lfwlaw.com (Madeline H. Haikala) — Mon, 29 Jun 2009 23:25:20 -0600

The Eleventh Circuit applies an "extremely stringent" standard to review a new trial order based on a district court's finding that a jury verdict is against the great weight of the evidence. Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc. et al., No. 08-14133 (11th Cir. June 16, 2009). The Court explained that, "this more rigorous standard of review ensures the district court does not simply substitute its own credibility choices and inferences for the reasonable choices and inferences made by the jury." The Eleventh Circuit applies a more deferential standard when a new trial order is based on jury misconduct "or other prejudicial trial events that 'contaminate' the jury's deliberative process."

Appeal Dismissed for Lack of Final Judgment

mhaikala@lfwlaw.com (Madeline H. Haikala) — Sun, 28 Jun 2009 22:38:07 -0600

In Hall v. Reynolds, No. 1080408 (Ala. June 19, 2009), the trial court granted a motion for preliminary injunction but did not determine whether the plaintiff was entitled to a permanent injunction. After a bench trial, the trial court entered a "Final Order and Judgment." Defendant filed “what purported to be a postjudgment motion, which the trial court denied on November 11, 2008. On December 22, 2008, Hall filed a notice of appeal to this Court.” The Court dismissed the appeal because it was not from a final judgment that disposed of all of the claims against all of the parties. "’ [I]t is not the title of an order that makes it final; rather, the test of a judgment's finality is whether it sufficiently ascertains and declares the rights of the parties.' Ex parte DCH Recr'l Med. Gtr., 572 So. 2d 1162, 1164 (Ala. Civ. App. 1990)(citing McCulloch v. Roberts, 290 Ala. 303, 276 So. 2d 425 (1973)).”

The Court explained that the trial court order was not final, “for several reasons. In fact, it fails to adequately ascertain and declare the rights of the parties in practically every conceivable manner. For example, the Moorer heirs' trespass claim includes a claim seeking compensatory damages, but the order neither awards nor denies monetary relief. Such an order is not final. See Certain Underwriters at Lloyd's, London v. Southern Natural Gas Co., 939 So. 2d 21, 27-28 (Ala. 2006). Also, the Moorer heirs requested permanent injunctive relief, but the order neither awards nor denies such relief. Although the trial court may have intended to grant injunctive relief by simply entering a judgment in favor of the Moorer heirs, it did not do so, and it followed none of the mandatory requirements of Rule 65 (d)(2), Ala. R. Civ. P. See Appalachian Transp. Group, Inc. v. Parks, 738 So. 2d 878, 883 (Ala. 1999). Further, the trial court's order does not locate or define the relevant boundary line, see § 35-3-3, Ala. Code 1975, or otherwise declare the rights of the parties with regard to the disputed strip. The trial court's order did not conclusively determine the issues before it, nor did it ascertain or declare the rights of the parties. Consequently, the order is not a final judgment, and this appeal must be dismissed.“

Constitutional Issue Not Waived Though Designated as Affirmative Defense Rather Than Counterclaim

mhaikala@lfwlaw.com (Madeline H. Haikala) — Sun, 28 Jun 2009 22:11:17 -0600

Reviewing an action for declaratory and injunctive relief, the Alabama Supreme Court held that the issue of the constitutionality of appropriations legislation was properly before the Court even though the Governor’s administration should have raised the issue as a counterclaim rather than as an affirmative defense. Rule 8(c) of the Alabama Rules of Civil Procedure allows a court to treat a mistakenly designated affirmative defense as a counterclaim. More importantly, “the constitutionality of § 4 was argued by both sides at the trial-court level, and the trial court definitively ruled on the issue. Moreover, the Riley administration specifically identified the constitutionality of § 4 of H.B. 328 as an issue on appeal, and both sides have argued the merits of that issue to this Court.” Governor Bob Riley v. Joint Fiscal Committee of the Alabama Legislature et al., No. 1080468 (Ala.June 19, 2009).

The Court added that the Governor did not properly raise the issue of whether the legislation conflicted with § 126 of the Alabama Constitution. Consequently, the Court refused to address the issue.

Cases Released June 26, 2009

icooper@lfwlaw.com (Ivan B. Cooper) — Fri, 26 Jun 2009 16:33:26 -0600

From the Alabama Court of Civil Appeals:

Gooden v. Board of Water and Sewer Commissioners of the City of Mobile d/b/a Mobile Area Water and Sewer System

D.B. v. Coffee County Department of Human Resources

K.W.N. v. H.G.T.

Gordon, Dana, Still, Knight & Gilmore, LLC v. Jefferson County

Stone v. Stone

KGS Steel, Inc. v. McInish

Complete List of Cases from the Alabama Court of Civil Appeals

From the Alabama Supreme Court:

Ex parte Sumerlin; Petition for Writ of Mandamus (In re: Williford v. Toole et al.)

Ex parte Cooper; Petition for Writ of Certiorari to the Court of Criminal Appeals (In re: Cooper v. State of Alabama)

J.B. v. Lawson State Community College et al.

Smith v. Slack Alost Development Services of Alabama, LLC

Ex parte PinnOak Resources, LLC, et al.; Petition for Writ of Mandamus (In re: Weekley et al. v. U.S. Steel Mining Company et al.)

Assurant, Inc. v. Mitchell

Ex parte Jenkins; Petition for Writ of Certiorari to the Court of Criminal Appeals (In re: State of Alabama v. Jenkins)

Ex parte Dickson; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Dickson v. Dickson)

State Farm Mutual Automobile Insurance Company v. Brown

Hutchins v. Service Corporation International

Complete List of Cases from the Alabama Supreme Court

No Attorney Fees When Collecting on Supersedeas Bond - Court Overturns and Qualifies Precedent

crosler@lfwlaw.com (Craig N. Rosler) — Tue, 23 Jun 2009 11:28:24 -0600

Plaintiffs who successfully defended their judgment on appeal could not recover attorney fees incurred during the appeal when collecting against a supersedeas bond. Centering its discussion on appellate Rule 8, the Supreme Court of Alabama overturned and qualified precedent, and seems to have barred the recovery of appellate attorney fees through supersedeas bonds. Jones v. Regions Bank, No. 1060896 (Ala. Jun. 12, 2009).

After successfully defending their judgment on appeal, the plaintiffs sued on the defendants’ supersedeas bond and sought to recover, among other things, the attorney fees they incurred during the appeal. The trial court denied this request and, ultimately, the Supreme Court of Alabama affirmed that denial.

The issue was whether the supersedeas bond in this case covered such fees; and, more broadly, whether supersedeas bonds can cover attorney fees. The plaintiffs pointed to three cases — Hudson v. Hudson, 555 So. 2d 1084 (Ala. Civ. App. 1989); Osborn v. Riley, 331 So. 2d 268 (Ala. 1976); and Ex parte Home Indemnity Ins. Co., 374 So. 2d 1356 (Ala. 1979) — which they said allowed them to recover attorney fees under the bond. In the language used in these decisions, and so in the reasoning of Jones itself, appellate attorney fees were couched as part of the

costs, and damages as any party aggrieved may sustain by reason of the wrongful appeal and suspension of the execution of the judgment or decree.

The Alabama Supreme Court reviewed the cases cited by the plaintiffs, and held that none of them authorized their recovery of appellate attorney fees under the bond. The main backdrop of the court’s analysis was appellate Rule 8. Unlike earlier law, “[d]amages are not expressly recoverable under a supersedeas bond pursuant to Rule 8.”

Taking the plaintiffs’ three main cases concisely and in order:

Hudson, which was decided well after Rule 8 was adopted, was wrong to hold that appellate attorney fees could figure among the “costs of appeal” that a supersedeas bond could embrace. To this extent, Hudson was overruled.

Osborn differed in two ways from the instant case. First, the supersedeas bond in Osborn was executed before Rule 8 changed the governing law. Second, that bond — unlike the one in Jones, but consistent with prior law — expressly included the “costs and damages” that might flow from “a wrongful appeal,” under which head came attorney fees. Given these differences, Osborn did not warrant the instant plaintiffs’ recovery of attorney fees

Finally, Home Indemnity relied on Osborn in allowing a bond to include appellate attorney fees. But Osborn, as we have just said, itself relied on law that was changed by current Rule 8. Home Indemnity also misread Rule 8 to continue to allow supersedeas bonds to cover attorney fees. It therefore did not sanction the recovery of fees in this case.

Particularly given its treatment of Home Indemnity, and driven mainly by Rule 8, the Alabama Supreme Court seems to have held that appellate attorney fees cannot be included in supersedeas bonds. The precise question in Home Indemnity was whether the trial court could require the losing party to post a bond that would make it liable for the attorney fees its adversary incurred in defending the appeal. Home Indemnity said the trial court could require such a bond, but Jones rejected the rationale on which Home Indemnity reached that conclusion. Though the 54 pages of Jones are a model of clarity, the decision does not expressly state what seems to be the ultimate implication — that supersedeas bonds can no longer include appellate attorney fees. Jones works through the facts before it, in other words, to yield an apparently broad prohibition.

The lengthy opinion in Jones also treats issues of pre- and post-judgment interest, as well as “postjudgment damages” in property foreclosure suits, all of which should be of interest to the appellate practitioner.

"Good Count / Bad Count" Error Yields New Trial

crosler@lfwlaw.com (Craig N. Rosler) — Mon, 22 Jun 2009 16:23:25 -0600

After being charged on five claims, the jury returned a general verdict for the plaintiff. Two of the claims were not supported by substantial evidence. The verdict was thus flawed under the “good count / bad count” rule. The Supreme Court of Alabama reversed the judgment entered on the verdict, and remanded the case for a new trial on the viable claims. Mobile OB-GYN, P.C. v. Baggett, Nos. 1071020, 1071081 (Ala. Jun. 12, 2009).

The jury received five negligence claims in this medical malpractice case. It returned a general verdict for the plaintiff. The defendant appealed, convincing the Supreme Court of Alabama that two of the claims were not supported by “substantial evidence” and should not have gone to the jury. This brought the verdict under the “good count / bad count” rule. As the state’s high court explained:

[W]hen the trial court submits to the jury a “good count” — one that is supported by the evidence — and a “bad count” — one that is not supported by the evidence — and the jury returns a general verdict, this Court cannot presume that the verdict was returned on the good count. In such a case, a judgment entered upon the verdict must be reversed.

(Quotation omitted) (emphases by court).

The appellate court thus reversed the judgment on the verdict, held that the defendant was entitled to a judgment as a matter of law on the deficient claims, and remanded the case for a new trial on the “good” claims.

Summary Judgment Denial Not Reviewed By Mandamus Despite Involving Time Bar Against Previously Fictitious Party

crosler@lfwlaw.com (Craig N. Rosler) — Mon, 22 Jun 2009 15:51:12 -0600

A defendant sought mandamus review of the circuit court’s denial of its motion for summary judgment. The motion presented issues of fictitious-party practice and the statute of limitations. Because the trial court had not reached the limitations issue, and because that issue might make the fictitious-party question irrelevant, the defendant had an adequate remedy other than mandamus. The Supreme Court of Alabama thus denied the writ. Ex parte Brian Nelson Excavating, LLC, No. 1071473 (Ala. Jun. 12, 2009).

Plaintiffs sued various defendants, real and fictitious, for damage that nearby construction work caused to their houses. Four years after the underlying events, they substituted Nelson for one of the fictitious defendants. Nelson moved for summary judgment. He argued that the plaintiffs’ claim sounded in nuisance, that this was subject to a two-year time bar, that the amendment naming him did not relate back to the original complaint, and that the claims against him should therefore be dismissed as untimely.

The plaintiffs replied that their naming of Nelson should relate back to the initial filing. They also argued that their case lay in trespass. Trespass, they said, drew a six-year time bar which made their claims against Nelson timely.

The trial court denied Nelson’s summary judgment motion. In doing so, it did not resolve the limitations issue. It simply reasoned: “There remains a question as to whether [Nelson’s] actions constituted nuisance or trespass; therefore, [Nelson’s] motion for summary judgment . . . is denied.” Nelson then filed a petition for the writ of mandamus.

The Supreme Court of Alabama declined to grant the writ. Mandamus, the court reminded readers, typically does not lie from the denial of a motion for summary judgment. However, a mandamus petition

is the proper vehicle by which to seek review of a denial of a motion for summary judgment filed by a party originally listed as a fictitiously named defendant when the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.

(Quotation omitted.)

The fictitious-party question in this case depended upon the limitations question. If the claims were indeed for trespass, and thus under a six-year statute, the fictitious-party question would be “irrelevant.” But the lower court had not yet decided this point. Nelson therefore still had “[an]other adequate remedy.” The court wrote: “The fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal.” The fictitious-party issue was “not ripe for mandamus review” and the petition was denied.

Cases Released June 19, 2009

mhaikala@lfwlaw.com (Madeline H. Haikala) — Fri, 19 Jun 2009 15:56:16 -0600

From the Alabama Court of Civil Appeals:

Simmons v. Coosa County Board of Education

Smith v. Smith

Pike v. Reed

M.G. v. Etowah County Department of Human Resources

Trimble v. Trimble

Hatch v. NTW Incorporated d/b/a National Tire and Battery Company

Parker v. Parker

Henning v. Henning

Stone v. Stone

McConico v. Correctional Medical Services, Inc.

Complete List of Cases from the Alabama Court of Civil Appeals

From the Alabama Supreme Court:

Governor Riley and Childree, comptroller of the State of Alabama v. Joint Fiscal Committee of the Alabama Legislature et al.

Hall v. Reynolds et al.

Black v. Comer

Complete List of Cases from the Alabama Supreme Court

Cases Released June 12, 2009

crosler@lfwlaw.com (Craig N. Rosler) — Mon, 15 Jun 2009 10:09:04 -0600

From the Alabama Court of Civil Appeals:

Ross v. Rogers

Smith v. Gaston

Rose v. Safeway Insurance Company of Alabama, Inc.

Complete List of Cases from the Alabama Court of Civil Appeals

From the Supreme Court of Alabama:

Ex parte Brian Nelson Excavating, LLC; Petition for Writ of Mandamus (In re: Prater v. Brian Nelson Excavating, LLC)

Mobile OB-GYN, P.C. v. Baggett

Dolgencorp, Inc. v. Taylor

QORE, Inc., d/b/a QORE Property Sciences v. Bradford Building Company, Inc.

Ex parte Lansdell; Petition for Writ of Certiorari to the Court of Criminal Appeals (In re: Lansdell v. State of Alabama)

Ex parte Greenetrack, Inc.; Petition for Writ of Mandamus (In re: Estano v. Greenetrack, Inc., et al.)

Jones v. Regions Bank

Complete List of Cases from the Alabama Supreme Court

Another Appeal Dismissed Pursuant to Rule 59's "Denied By Operation of Law" Language

njordan@lfwlaw.com (Nikaa Jordan) — Wed, 10 Jun 2009 09:07:52 -0600

Eight Mile Auto Sales, Inc. v. Fair, discussed below, is yet another appeal dismissed pursuant to Rule 59’s denied by operation of law language.

Eight Mile appealed from a judgment of the circuit court denying its motion to alter, amend, or vacate an order of the district court granting a motion to stay a writ of garnishment that Eight Mile brought against Fair. After the district court stayed the writ of garnishment, Eight Mile filed a “motion to reconsider and to allow oral argument.” The same day, the district court entered an order that stated that the motion to reconsider and allow oral argument filed by Eight Mile was granted in part and set for hearing on June 1, 2007. On June 11, 2007, the district court entered an order “reinstating” the writ of garnishment, but on April 23, 2008 entered an order stating that the garnishment was dismissed and ordering that the money collected on the garnishment be returned to Fair.

Eight Mile filed a notice of appeal to the Mobile Circuit Court on April 30, 2008. On December 5, 2008, that court entered an other stating “By order of court, [Eight Mile’s] motion to vacate, alter, or amend the order issued April 21, 2008 granting motion [for] stay of garnishment denied. Case dismissed. Costs taxed as paid.” Eight Mile filed a notice of appeal to the Court of Civil Appeals on December 17, 2008.

Though not raised by either party, the Court of Civil Appeals considered whether it had jurisdiction over the appeal and concluded that it did not. Citing Rule 59.1(dc), which is identical to Rule 59.1, except that the period of 90 days is reduced to 14 days, the court noted that the district court had 14 days to rule on Eight Mile’s May 2, 2007 “motion to reconsider and to allow oral argument.” On May 7, 2007, the district court entered an order stating that that motion was “granted in part” and setting the motion for a hearing on June 7, 2007. However, the district court’s order merely set Eight Mile’s motion for a hearing; it did not grant any substantive relief or rule on the merits of the motion. Thus, that motion was denied by operation of law on May 16, 2007 and the district court was without jurisdiction to issue the June 11, 2007 order purporting to “reinstate” the writ of garnishment. The district court’s April 30, 2007 order staying the garnishment was the final judgment in the case. In order to be timely, Eight Mile’s notice of appeal to the circuit court would have had to have been filed on or before May 30, 2007, i.e., 14 days after its postjudgment motion had been deemed denied by operation of law. It was not and the appeal was therefore to be dismissed.

Trial Court's Failure To Hold Hearing on Post-Trial Motions Was Reversible Error

njordan@lfwlaw.com (Nikaa Jordan) — Wed, 10 Jun 2009 09:04:03 -0600

While a trial court’s failure to hold a hearing on post-trial motions is generally error, it rose to the level of reversible error in Cunningham v. Edwards, No. 2071214, released by the Court of Civil Appeals on June 5, 2009.

In Stocks, the mother appealed from a judgment entered by the Fayette Circuit Court awarding custody of her minor children to their paternal relatives. The judgment at issue arose from a divorce complaint that the mother filed in which she sought custody, child support, and an equitable division of the parties’ property. The mother later amended her complaint to include a request for alimony. By order dated October 1, 2008, the trial court awarded legal and physical custody of the children to their paternal relatives, ordered the father to pay child support, and reserved jurisdiction to order the mother to pay child support until such time as she became employed. The trial court did not rule on the mother’s request for alimony or her request for an equitable division of property.

In Laney v. Garmon, Laney filed a complaint seeking to enjoin Garmon from blocking access to a roadway. He sought a declaration that the roadway was a public road, an injunction preventing Garmon from blocking the public’s access to it, and declaring that Garmon had no right or interest in a parcel of property that both parties claimed was included in the property descriptions in their deeds. Following an ore tenus hearing, the trial court held that the road had been abandoned for more than twenty years and was not, therefore, a public road. The trial court’s order did not address ownership of the disputed property.

Both Stocks and Laney implicated the final judgment rule: an appeal only lies from a final judgment. Ordinarily, a judgment is not final unless all claims, or the rights or liabilities of all parties, have been decided.

In Stocks, while the trial court’s order reserving jurisdiction to order the mother to pay child support fully adjudicated that issue, the trial court did not rule on the division of the marital property or the mother’s request for alimony. Accordingly, the order appealed from was not a final judgment and would not support an appeal.

The same result obtained in Laney. Because the trial court’s order adjudicated only the claims pertaining to the roadway and neglected to dispose of those related to the parcel of property, rights and liabilities between the parties remained undecided. The appeal was due to be dismissed.

Contrast Stocks and Laney with A.M. v. J.S. In that domestic relations case, the father filed a petition in the juvenile court to modify a 2001 judgment which had given custody of his daughter to the daughter’s mother. The petition was denied and the father appealed to the Elmore Circuit Court for de novo review. On September 11, 2008, the circuit court awarded custody of the child to the father, ordered the mother to pay child support to the father, and ordered that the father take special steps to accommodate the child’s dyslexia.

The mother filed her notice of appeal on September 16, 2008, as well as a motion seeking to stay execution of the judgment pending appellate review. Also on September 16, 2008, the father filed a postjudgment motion requesting that the circuit court amend its judgment to reflect that the court had applied the Ex parte McClendon standard rather than the best interest standard. He also filed an objection to the mother’s motion to stay execution of the judgment. On September 19, 2008, the circuit court entered an order denying the mother’s request to stay execution of the judgment. On September 30, 2008, the father filed a motion to clarify the visitation provisions in the judgment, requesting that the court designate the location at which visitation exchanges should take place.

The circuit court never ruled on the September 30, 2008 motion, but on October 9, 2008, made and initialed the following entry on the case action summary sheet: “upon motion to amend, granted in that McLendon standard applied to ruling.” On October 10, 2008, the father filed a “Notice of Compliance,” contending that he had complied with certain provisions of the judgment requiring him to obtain treatment for the child’s dyslexia. That same day, the mother filed an emergency motion alleging that the father had failed to comply with the provisions he was ordered to make for the child’s dyslexia and requesting that the court enforce those provisions.

Because there were two motions pending in the trial court (the mother’s motion to enforce the court’s judgment regarding the child’s dyslexia treatment and the father’s motion to clarify the visitation provisions), the court first considered whether the judgment was a final judgment or not. The court concluded that the judgment was a final judgment and would support an appeal, reasoning that the father’s September 16, 2008 postjudgment motion was denied by operation of law on September 30, 2008 (fourteen days after it was filed pursuant to a juvenile court rule), because the circuit court had not ruled on it. When the circuit court purported to rule on the father’s motion by making and initialing the October 9, 2008 entry on the case action summary sheet, that action was a nullity. Therefore, to the extent the father’s September 30, 2008 motion to clarify the visitation provisions could be viewed as a postjudgment motion, it was untimely because it was not filed within 14 days of the entry of the circuit court’s September 11, 2008 order, and the circuit court had no jurisdiction to act on it.

The mother’s notice of appeal, which had been held in abeyance pursuant to Alabama Rule of Appellate Procedure 4(a)(5) “quickened” on September 30, 2008, the date the judgment became final. Regarding the mother’s October 10, 2008 emergency motion to enforce the provisions regarding the child’s dyslexia, the court reasoned that it was akin to a contempt motion and initiated a proceeding separate and independent from the action in which the custody-modification order had been entered. Therefore, it did not affect the finality of the custody-modification order and the court had jurisdiction to consider the substantive issues on appeal.

Court of Civil Appeals Dismisses Two Appeals As From Non-Final Judgments Where the Orders Appealed From Adjudicated Less Than All the Issues Before It, Yet Deems Another Judgment Final Where Two Motions Remained Pending in the Trial Court

njordan@lfwlaw.com (Nikaa Jordan) — Wed, 10 Jun 2009 08:46:59 -0600

Appeals in both Stocks v. Stocks, No. 2081033, and Laney v. Garmon, No. 2071233, were dismissed as from non-final judgments by the Court of Civil Appeals last week. By contrast, in A.M. v. J.S, a final judgment was found to support an appeal to the same court even though the circuit court had not ruled on two motions pending before it.

U.S. Supreme Court Issues Important Recusal Decision

icooper@lfwlaw.com (Ivan B. Cooper) — Mon, 08 Jun 2009 16:33:59 -0600

The U.S. Supreme Court issued an interesting case on recusal today. In Caperton v. A.T. Massey Coal Co., [08-22], a 5-4 opinion, the Court recognized a due process violation when a judge refuses to recusue himself when a litigant "had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent."

In Caperton v. A.T. Massey Coal Co., the defendant Massey was hit with a $50 million judgment in West Virginia. After the verdict but before the appeal, West Virginia had an election for their Supreme Court. Massey's chairman threw his support behind Brent Benjamin, a challenger for one of the contested seats. In addition to donating the $1,000 statutory maximum to the campaign, Massey's chairman also donated $2.5 million to a PAC which supported Benjamin, and also spent another $500,000 on direct mailing and ads supporting Benjamin. This $3 million spent by Massey's chairman was more than the total spent by other Benjamin supporters combined, and three times the amount spent by Benjamin's own committee. Benjamin was elected by 50,000 votes, which was 7 percentage points.

Benjamin refused to recuse himself when Massey's appeal was brought before the court. By a 3-2 vote, with Benjamin voting with the majority, the judgment was reversed. On rehearing, other justices recused themselves, but Benjamin again refused. On the rehearing, Benjamin, acting as chief judge, appointed special justices to hear the appeal. Again with Benjamin's vote, the rehearing was denied.

The U.S. Supreme Court had previously recognized two instances where due process required recusal - when the judge had a financial interest in the outcome and when the judge is trying a defendant for certain forms of criminal contempt. The Court now recognizes a new due process right to recusal when a litigant exerted disproportionate influence in getting the judge elected:

We conclude that there is a serious risk of actual bias-based on objective and reasonable perceptions-when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

2009 WL 1576573 at *11. The Court found that instances such as these raised a serious, objective risk of actual bias which required recusal. The opinion was authored by Justice Kennedy and joined by Stevens, Souter, Ginsburg and Breyer.

Roberts, Scalia, Thomas, and Alito dissented. Roberts said this "objective" test provided no guidance at all, and listed 40 different inquiries which would have to be answered when applying this test. Roberts said that this was a classic case of "Hard cases make bad law." Scalia also wrote a dissenting opinion, saying that the cure of this case was worse than the disease.

Cases Released June 5, 2009

njordan@lfwlaw.com (Nikaa Jordan) — Fri, 05 Jun 2009 15:42:51 -0600

From the Alabama Court of Civil Appeals:

Matthew's Masonry Company v. Aldridge

Eight Mile Auto Sales v. Fair

Stocks v. Stocks

Baker v. Baker

Laney v. Garmon

Cunningham v. Edwards

A.M. v. J.S.

Wu v. Wu

Complete List of Cases from the Alabama Court of Civil Appeals

From the Alabama Supreme Court:

City of Montgomery v. Town of Pike Road

Complete List of Cases from the Alabama Supreme Court

Successive Post-Judgment Motions Not Allowed; Court Will Not Review Order Entered In Another Case

icooper@lfwlaw.com (Ivan B. Cooper) — Fri, 05 Jun 2009 13:53:10 -0600

After deciding the main issues in a divorce proceeding, the Court of Civil Appeals in Washington v. Washington, [Ms. 2070718] (Ala. Civ. App. May 29, 2009), addressed some interesting appellate issues regarding certain post-judgment orders of the trial court.

First, the court found that a second post-judgment motion filed by the wife was improper, as "successive post-judgment motions by the same party, seeking essentially the same relief, are not allowed." The trial court's entry of a judgment based on the second post-judgment motion was therefore void.

Second, the court refused to hear the husband's appeal of an order in a contempt action between the parties. The contempt order was in a separate action and was issued months after the notice of appeal was filed. Because no notice of appeal had been filed in the separate contempt action, the Court of Civil Appeals could not hear the appeal of that order in conjunction with this case.