Alabama Appellate Watch

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.

The court further noted that the ore tenus standard plugs into this analysis:

[I]n ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief....Moreover, where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court's conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.

Also on January 22, the Alabama Supreme Court released a case stating the standard of review applicable to orders granting permanenet injunctive relief. In Sycamore Management Group, LLC v. Coosa Cable Co., the court stated that the entry of a permanent injunction is reviewed de novo, but that the deferential ore tenus standard comes into play in that "a trial court's consideration of ore tenus testimony has bearing upon the standard of revew we apply to the entry of a permament injunction."

Dependency Adjudications Constitute Final Appealable Judgments

Madeline H. Haikala — Sun, 24 Jan 2010 23:53:41 -0600

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. 2080544 (Ala. Civ. App. July 2,2009), the Court explained: "[a]lthough a juvenile court's orders in a dependency case are, in one sense, never 'final' because the court retains jurisdiction to modify its orders upon a showing of changed circumstances, this court has always treated formal dependency adjudications as final and appealable judgments despite the fact that they are scheduled for further review by the juvenile court. 'Under our caselaw, a formal determination by a juvenile court of a child's dependency coupled with an award of custody incident to that determination will give rise to an appealable final judgment even if the custody award is denominated as a 'temporary' award and further review of the case is envisioned.'" The Court added, "[i]n juvenile actions, an appeal must be initiated within 14 days of the entry of the judgment or order from which the appeal is taken. Rule 28(C), Ala. R. Juv. P."

Cases Released January 22, 2010

Nikaa Jordan — Fri, 22 Jan 2010 15:21:10 -0600

From the Alabama Court of Civil Appeals:

Jones et al. v. Hamilton

Harrison v. State Department of Industrial Relations

R.P.J. v. Henry County Department of Human Resources

Prince v. State Department of Revenue

Hull v. Hull

Complete List of Cases from the Alabama Court of Civil Appeals

From the Alabama Supreme Court:

Ex parte Excelsior Financial, Inc.; Petition for Writ of Mandamus (In re: Tillis v. WM Page & Associates, Inc., d/b/a The Lifeline Program, et al.)

Sycamore Management Group, LLC v. Coosa Cable Company, Inc.

Wachovia Bank, N.A. v. Jones, Morrison & Womack, P.C., et al.

Complete List of Cases from the Alabama Supreme Court

Cases Released January 15, 2010

Madeline H. Haikala — Fri, 15 Jan 2010 14:40:14 -0600

From the Alabama Court of Civil Appeals:

M.H. v. W.

Mosley v. Builders South, Inc.

Complete List of Cases from the Alabama Court of Civil Appeals

From the Alabama Supreme Court:

BMJA, LLC v. Murphy

City of Graysville v. Glenn, director of the Alabama Department of Environmental Management

Ex parte Campbell; Petition for Writ of Certiorari (In re: Campbell v. Campbell)

Wyeth, Inc. v. Blue Cross and Blue Shield of Alabama

Complete List of Cases from the Alabama Supreme Court

Cases Released January 8, 2010

Ivan B. Cooper — Mon, 11 Jan 2010 10:10:31 -0600

From the Alabama Court of Civil Appeals:

Murphy v. Madison City Board of Education

Jackson v. Delphi Automotive Systems

M.G. v. State Department of Human Resources

I.S.T. v. R.W.B.

James v. City of Russellville

Klaeser v. Milton

Parris v. Prison Health Services, Inc.

Complete List of Cases from the Alabama Court of Civil Appeals

From the Alabama Supreme Court:

Arthur v. Bolen

G.UB.MK Constructors v. Garner

Complete List of Cases from the Alabama Supreme Court

Cases Released December 30, 2009

Craig N. Rosler — Thu, 31 Dec 2009 11:18:50 -0600

From the Alabama Court of Civil Appeals:

L.H. v. Lee County Department of Human Resources

Ex parte Wilson; Petition for Writ of Mandamus (In re: Madison County Board of Education v. Wilson)

Complete List of Cases from the Alabama Court of Civil Appeals

From the Alabama Supreme Court:

Certain Underwriters of Lloyd's, London, and Certain London Marketing Insurance Companies v. Southern Natural Gas

Ex parte Wilding; Petition for Writ of Mandamus (In re: State of Alabama v. Wilding)

Ex parte Synovus Trust Company, N.A., et al.; Petition for Writ of Mandamus (In re: Raines et al. v. Synovus Trust Company, N.A., et al.)

Ex parte Worley; Petition for Writ of Mandamus (In re: Tatum v. Worley)

Joe Hudson Collision Center v. Dymond

Complete List of Cases from the Alabama Supreme Court

Judge Godbold Passes Away at Age 89

Ivan B. Cooper — Mon, 28 Dec 2009 07:59:34 -0600

Legendary Circuit Court Judge John C. Godbold passed away on December 22, 2009 at age 89. Judge Godbold was the only person ever to serve as Chief Judge of two different judicial Circuits (5th and 11th), and was the author of the seminal piece on appellate advocacy "Twenty Pages and Twenty Minutes."

Here is a brief article from the Montgomery Advertiser: "Federal Judge Godbold dead at 89."

Order in Which Trial Court Expressly Retained Jurisdiction Until Settlement Order Was Consummated Was Final Appealable Order Granting an Injunction

Nikaa Jordan — Mon, 21 Dec 2009 15:49:52 -0600

In Kappa Sigma Fraternity v. Ryan Price-Williams, the Alabama Supreme Court held that it had appellate jurisdiction even though the trial court had expressly retained jurisdiction pending the consummation of a settlement agreement.

Price-Williams sued Kappa Sigma National Fraternity, a local Kappa Sigma chapter, and invidual members of the chapter for injuries he sustained in an assault at a Kappa Sigma fraternity house. Just before the case was to be submitted to the jury, Price-Williams and the chapter entered into a confidential settlement agreement, but the agreement was not reduced to writing and a dispute arose as to its terms.

The chapter contended that Price-Williams intended to release his claims against the national fraternity, the chapter, and the individual defendants in their capacities as agents of the chapter. Price-Williams, however, contended that he intended to release only the national fraternity and the chapter, not the individual defendants, either as agents or individuals. Price-Williams and the chapter each filed a motion to enforce the settlement agreement according to their respective interpretations of it.

Regarding the disputed terms of the settlement agreement, the trial court granted Price-Williams' order to enforce the settlement agreement and denied the chapter's motion. It ordered the parties to exchange a release and the settlement funds on or before March 9. The trial court further stated that "upon the consummation of the settlement, this matter will be deemed dismissed with prejudice, each party to bear its own cost."

The chapter filed its notice of appeal on March 9, 2009 without paying the settlement funds. Price Williams filed a motion to dismiss that appeal, arguing that the appellate court lacked subject matter jurisdiction because the contingency upon which the trial court's order was to be made final--consummation of the settlement--had not occurred.

The Alabama Supreme Court rejected that argument, however, noting that Rule 4(a)(1)(A) expressly contemplates appeals from orders "granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or to modify an injunction." An injunction, the court reasoned, is defined as "a court order commanding or preventing an action." The trial court's order commanded the chapter to take action and was therefore injunctive in nature. As a result, it could be appealed pursuant to Rule 4(a)(1)(A).

Alabama Court of Civil Appeals Discusses Law of the Case Doctrine

Nikaa Jordan — Mon, 21 Dec 2009 15:10:27 -0600

The Alabama Court of Civil Appeals provided a helpful discussion of the application of the law of the case doctrine in Drees v. Turner, released December 18, 2009.

The first time the Drees case had been before the Court of Civil Appeals, the plaintiff Drees argued that the trial court had erred in dismissing his action based on the doctrine of judicial immunity. The appellate court did not address the judicial immunity issue at that time, but held that the trial court had impermissibly converted the defendants' motions to dismiss into motions for summary judgment by considering matters outside the pleadings. The appellate court remanded the case for further proceedings consistent with its opinion.

Following remand, the trial court entered a second judgment, in which it explained that it had not relied on any of the material outside the pleadings in dismissing the plaintiff's action. The trial court further stated that, although it had quoted from those materials, it did so only in dicta. The trial court thereafter reentered a judgment dismissing the action without affording the plaintiff any opportunity to conduct discovery or to submit additional evidence in support of his position.

On appeal, the plaintiff argued that the trial court failed to follow the appellate court's mandate on remand. The court noted the law of the case doctrine:

It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered....The appellate court's decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate.

Based on this, the appellate court's conclusion in the first appeal that the trial court had considered evidence outside the pleadings became the law of the case. Under the law of the case doctrine, whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, "so long as the facts on which the decision was predicated continue to be the facts of the case."

While the appellate court did hold in the first appeal that the trial court had considered evidence outside the pleadings in rendering its orders of dismissal, the facts upon which that holding was based changed. The record now contains information directly from the trial court in which the trial court explained that it did not consider evidence outside the pleadings in ruling on the motions to dismiss. Accordingly, the law of the case doctrine did not prevent the trial court from reentering a judgment dismissing the case based solely on the pleadings.

Cases Released December 18, 2009

Nikaa Jordan — Mon, 21 Dec 2009 13:47:05 -0600

From the Alabama Court of Civil Appeals:

Montgomery County Board of Education v. Webb

Holden v. Edwards Specialties, Inc.

Birmingham Board of Education v. Hawkins

Drees v. Turner

A.B. v. J.B.

C.D.K.S. v. K.W.K.

Folsom v. Stagg Run Development, LLC, et al.

Complete List of Cases from the Alabama Court of Civil Appeals

From the Alabama Supreme Court:

Ex parte Peterson; Petition for Writ of Certiorari to the Court of Criminal Appeals (In re: Peterson v. City of Dothan)

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

Sears v. McCrory

Kappa Sigma Fraternity, Kappa Nu Chapter v. Price-Williams

Historic Blakeley Foundation, Inc. v. Williams

Woven Treasures, Inc. v. Hudson Capital, L.L.C.

Graves v. Brookwood Health Services, Inc., d/b/a Brookwood Medical Center

Complete List of Cases from the Alabama Supreme Court

Court Reviews Procedure for Appeal from Arbitration Award and Rule 60(b) Order

Madeline H. Haikala — Sun, 20 Dec 2009 23:37:03 -0600

The Court of Civil Appeals addressed a number of specialized rules of appellate procedure in Tuscaloosa Chevrolet, Inc. v. Guyton, No. 2080590 (Ala.Civ.App. Dec 11, 2009). Tuscaloosa Chevrolet appealed from an order granting Shirley Guyton’s Rule 60(b) motion for relief from a judgment on an arbitration award in favor of the dealership. The Court of Civil Appeals addressed the preliminary procedural issue in the case, explaining that although the Court generally regards an order under Rule 60(b) of the Alabama Rules of Civil Procedure as a non-appealable interlocutory order because additional trial court proceedings are likely, the order for Shirley was final and appealable because it “not only relieved her from [the arbitration] judgment but also rendered a judgment in her favor, which terminated the proceedings in the trial court.” The Court then addressed the more complex procedure for appeals from arbitration awards.

Shirley asked for relief from the judgment on the arbitrator’s award, arguing that she had not been served with process until after the entry of a judgment on the award, and she was not a party to the arbitration agreement at issue. The dealership replied that Shirley waived her right to challenge the judgment on the arbitrator’s award because she did not file a timely appeal of the award. The Court of Civil Appeals held that because the procedure for seeking relief from an arbitration award was not clear when the arbitrator issued the award at issue, Shirley’s effort to challenge the award could go forward. The Court then reviewed the correct procedure for challenging an arbitration award:

a party seeking judicial review of an arbitration award must file a notice of appeal from that award within 42 days from the date the party received notice of the award. 999 So.2d at 464. Thereafter, once the clerk of the circuit court enters a judgment on the award pursuant to § 6-6-2, that judgment is conditional and may be set aside by the circuit court based on the grounds stated in § 6-6-14 if the party challenging the award has filed a motion to vacate . . .

The judgment entered by the circuit clerk on the arbitrator's award pursuant to § 6-6-15 is a conditional one; it does not become a final appealable judgment until the circuit court has had an opportunity to consider a motion to vacate filed by a party seeking review of the arbitration award. A party seeking review of an arbitration award is required to file a motion to vacate . . . ‘within 30 days of filing the notice of appeal of the arbitration award and the clerk's entry of the conditional judgment based thereon’ in order to ‘invoke the circuit court's authority to set aside the [conditional] judgment’ on the arbitration award. Id. If the party wishing to challenge the arbitration award does not file a motion to vacate within that time, the circuit court's judgment based on the arbitration award becomes final. Id.

If the party files a timely motion to vacate, ‘the circuit court shall then have 90 days, unless that time is extended by the consent of all the parties, to dispose of the motion.’ Id. ‘If the circuit court grants the motion to vacate during this 90-day period, then the nonmovant has 42 days from the order granting the motion in which to file in the circuit court a notice of appeal of the court's judgment. If the circuit court denies the motion to vacate within 90 days or allows the motion to be denied by inaction after 90 days, then the conditional judgment entered by the circuit clerk becomes final, and the appeal [of the party challenging the award] is processed based on the prior notice of appeal.’

Court Grants Motion for Sanctions for Frivolous Appeal

Madeline H. Haikala — Sun, 20 Dec 2009 23:31:49 -0600

In Walker v. Walden, No. 09-11576 (11^th Cir. Nov. 18, 2009), appellants filed a motion in bankruptcy court to recover costs and fees more than 18 months after the court entered judgment for the appellants. The bankruptcy court denied the motion because it was untimely, and the appellants sought relief in the Eleventh Circuit. The appellee moved for costs under Fed. R. App. 38, arguing that the appeal was frivolous. Pursuant to Fed. R. App. 42(b), the appellants then moved to dismiss their appeal voluntarily.

Before dismissing the appeal, the Eleventh Circuit sanctioned the appellants. The Court explained that it does not want to discourage voluntary dismissals, but sometimes sanctions are appropriate when an appellant moves to dismiss after the appellee moves for sanctions. “We cannot condone the use of Rule 42(b) as a tool to avoid the adjudication of a pending Rule 38 motion . . . Appellants in this case have had the benefit of two rulings in the bankruptcy and district courts that have correctly rejected their position. They have persisted to this court for a third attempt.”

Cases Released December 11, 2009

Madeline H. Haikala — Fri, 11 Dec 2009 15:45:03 -0600

From the Alabama Court of Civil Appeals:

State Farm Fire & Casualty Company, as subrogee of JC Propellar Service v. Smith

Jones v. Shannon

Ex parte R.W. and D.W.; Petitions for Writ of Mandamus (In re: In the matter of K.L., a minor)

T.E. v. T.H.

T.C. v. C.E.

Hines v. Enis

Alabama Department of Public Safety v. Alston

Logan v. Logan

Tuscaloosa Chevrolet, Inc. v. Guyton

Williams v. Williams

M.D.C. v. K.D.

Complete List of Cases from the Alabama Court of Civil Appeals

From the Alabama Supreme Court:

Banyan Corporation v. Leithead

Complete List of Cases from the Alabama Supreme Court

Party Could Appeal Denied "Motion to Dismiss" Which Sought to Compel Arbitration

Craig N. Rosler — Mon, 07 Dec 2009 13:33:51 -0600

A motion to dismiss — which argued that the plaintiff had to arbitrate its claims — was effectively a motion to compel arbitration. The denial of that motion could be appealed as a matter of right. The Court of Civil Appeals erred by holding that the denied motion to dismiss would not support an appeal. Ex parte Directory Assistants, Inc., No. 1080852 (Ala. Nov. 25, 2009).

This case retreads familiar ground, with small nominal and procedural twists. The upshot of the decision is that a defendant’s “motion to dismiss,” which asked the circuit court to send the plaintiff’s claims to arbitration, was a motion to compel arbitration. When the circuit court denied this motion, Rule 4(d) of the Alabama Rules of Appellate Procedure gave the defendant the right to appeal that denial. The Court of Civil Appeals erred by holding that the circuit court had merely denied a motion to dismiss (in a more generic sense), so that its order could not be appealed.

The defendant in this contract case filed a “motion to dismiss” the plaintiff’s claims. The defendant argued that the parties’ contract obligated the plaintiff to arbitrate its claims. The circuit court disagreed and denied the motion to dismiss. The defendant appealed to the Alabama Supreme Court.

Some unusual appellate procedure then ensued. (This does not seem to have affected the substantive decision, but readers may find it useful.) The Supreme Court first ordered the defendant to show cause why its appeal should not be dismissed as being from a non-appealable order. The parties submitted briefs on this topic. After receiving these, the Supreme Court transferred the case to the Court of Civil Appeals under Ala. Code § 12-2-7(6).

The Court of Civil Appeals dismissed the appeal. It held that the circuit court’s order was one

denying a motion to dismiss, rather than an order granting or denying a motion to compel arbitration, and that the order is, therefore, an interlocutory order rather than a final judgment or an order that will support appellate review under Ala. Code 1975, § 12-22-2, or Rule 4(d), Ala. R. App. P.

(Citations omitted).

The defendant then persuaded the Supreme Court of Alabama to hear the case on certiorari under appellate Rule 39(a)(1)(D). The state’s high court reversed the Court of Civil Appeals. Contrary to the latter court’s reading, the defendant’s motion to dismiss was “tantamount” to a motion to compel arbitration. The defendant had argued in the trial court that the plaintiff’s claims should be dismissed precisely because they were contractually subject to arbitration. The defendant had repeated this argument throughout its motion, and the circuit court had clearly understood that the issue which the motion presented was whether the plaintiff’s claims had to be arbitrated.

The motion’s denial could therefore be appealed. Appellate Rule 4(d) specifically provides that denials of motions to compel arbitration may be appealed as a matter of right. The Court of Civil Appeals erred by treating the motion to dismiss as non-appealable, and should not have dismissed the appeal.

(The state’s high court also observed that, if the circuit court had postponed decision on the defendant’s arbitration motion, “in order to permit discovery,” that act would be reviewable by petition for mandamus.)

The decision of the Court of Civil Appeals was reversed and the case remanded for further proceedings.

Cases Released December 4, 2009

Ivan B. Cooper — Fri, 04 Dec 2009 14:21:34 -0600

From the Alabama Court of Civil Appeals:

Wesson v. Wal-Mart Stores East, L.P.

Dunn v. Dunn

Lucky v. Deutsche Bank National Trust Company

Ex parte Wilson; Petition for Writ of Mandamus (In re: Madison County Board of Education v. Wilson)

Enriquez v. Kokomo Properties, LLC

M.H. v. H.N.M.

Giardina v. Giardina

Thompson v. Wachovia Bank, National Association

Central Alabama Community College v. Robinson et al.

Romer v. Romer

Harris v. Tuscaloosa Housing Authority

Complete List of Cases from the Alabama Court of Civil Appeals

From the Alabama Supreme Court:

Ex parte Jacksonville State University; Petition for Writ of Mandamus (In re: Whetstone v. Meehan et al.)

Wheeler et al. v. George et al.

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

Ex parte Bank of America, N.A., et al.; Petition for Writ of Mandamus (In re: Wilson v. JPMorgan Chase & Company et al.)

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

Perdido Place Condominium Owners Association, Inc. v. Bella Luna Condominium Owners Association, Inc.

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

Underwood et al. v. Alabama State Board of Education et al.

Johnson v. Brunswick Riverview Club, Inc.

Frazier v. Core Industries, Inc.

Complete List of Cases from the Alabama Supreme Court

Cases Released November 25, 2009

Craig N. Rosler — Mon, 30 Nov 2009 10:50:12 -0600

From the Alabama Court of Civil Appeals:

Franks, as president of Central Alabama Community College v. Jordan

Watson v. Bowden

Complete List of Cases from the Alabama Court of Civil Appeals

From the Alabama Supreme Court:

Ex parte Directory Assistants, Inc.; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Directory Assistants, Inc. v. Cooke, Cameron, Travis and Company, P.C.)

Byrne et al. v. Galliher et al.

Ex parte Infirmary Health System, Inc.; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Pleasure Island Ambulatory Center v. State Health Planning and Development Agency et al.)

Ex parte Cowley; Petition for Writ of Certiorari to the Court of Criminal Appeals (In re: Cowley v. City of Trussville)

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

Complete List of Cases from the Alabama Supreme Court

Alabama Supreme Court Reverses Summary Judgment Where Trial Court Relied on Inadmissible Evidence

Nikaa Jordan — Mon, 23 Nov 2009 10:25:00 -0600

Barrett v. Radjabi-Mougadam is a reminder that documents submitted at summary judgment must be cerified or otherwise authenticated. In Barrett, the Alabama Supreme Court reversed a summary judgment because the trial court considered documents that were not properly authenticated and that violated the best evidence rule.