Standard of Review for Judicial Estoppel Undecided
In Henriksen v. Roth, No. 1060875 (Ala. Dec. 31, 2008), the Alabama Supreme Court left for another day the question of the proper standard of review for issues regarding judicial estoppel. "Henriksen urges this Court to apply a de novo standard of review regarding the trial court's refusal to grant her judicial-estoppel motion, arguing that the issue is purely a question of law. The Roth defendants urge this Court to employ an abuse-of-discretion standard of review, noting that Alabama law provides trial courts with considerable discretion concerning equitable remedies and observing that the United States Court of Appeals for the Eleventh Circuit reviews such rulings applying that same standard. See Transamerica Leasing, Inc. v. Institute of London Underwriters, 430 F.3d 1326, 1331 (11th Cir. 2005)." The Court did not decide the proper standard of review, "because the result is the same regardless of the standard applied."
The Court found that the doctrine of judicial estoppel did not apply because the position that the defendants took in another lawsuit was, "not 'clearly inconsistent' with the position the [] defendants took in the present case. As a result, there is no perception that either the court in the first action or the court in the second action was misled."
As an alternative to their judicial estoppel argument, the appellants submitted that the Court should reverse the jury verdict for the appellees because the trial court did not give one of their requested jury instructions, Although it was not ultimately the basis for the Court's rejection of the appellants' challenge to the jury charge, the Court noted that the appellants' objection to the questioned charge was inadequate. "Rule 51, Ala. R. Civ. P., provides, in part:
"No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless that party objects thereto before the jury retires to consider its verdict, stating the matter objected to and the grounds of the objection."
(Emphasis added.) The Roth defendants contend that Henriksen failed to state the grounds of her objections with regard to the requested jury charges.
During the pre-charge conference, Henriksen's counsel apparently made specific objections to the trial court's refusal to read Henriksen's requested jury charge on lack of consent and the trial court's giving of the Roth defendants' instruction on emergency medical treatment. The pre-charge conference was not, however, on the record. During the trial, Henriksen's counsel objected as follows:
"THE COURT:. . . . Exceptions from [Henriksen]?
"MR. FILLINGIM: Two, Your Honor, The reading of [the Roth defendants'] jury charge number 17 on emergency.
"THE COURT: Yeah, yeah. I note your exception. "MR. FILLINGIM: And the failure to read [Henriksen's] jury charge 33 on lack of consent.
"THE COURT: Okay. As we discussed, probably off the record, I--I note your exception. I've already articulated my reason for not giving the absence of consent. I think that its virtually subsumed in this case by the lack of consent charge I gave. I think it really would be confusing and unnecessary, but I note your exception."
In McElmurry v. Uniroyal, Inc., 531 So. 2d 859, 859-60 (Ala. 1988), this Court stated:
'To be timely, an objection to the trial court's oral charge must be made at the close of the court's initial instructions to the jury, and it must be stated with sufficient clarity or specificity to preserve the error--in other words, an exception designating only the subject treated by the court in its oral charge is insufficient. . . . Although Rule 51[, Ala. R. Civ. P.,] does not contemplate that the objecting party, in order to preserve for appellate review an erroneous instruction, deliver a discourse on the applicable law of the case, he must adequately state specific grounds for his objection. . . .
'Because the only objection raised by McElmurry to the trial court's jury instructions, both oral and written, referred to earlier objections made during the pre-charge conference, and because the record is devoid of any specific objection to the charge regarding punitive damages, the only issue raised on appeal, there is nothing for this Court to review. Rule 51, Ala. R. Civ. P., expressly requires that a party state the grounds for his objection; the failure to do so prevents appellate review of the alleged error.'
(Citations omitted.) Furthermore, '[i]n order to comply with the policy behind Rule 51, a party should leave nothing at large in objecting to the court's oral charge. The objection must be definite.' Coleman v. Taber, 572 So. 2d 399, 402 (Ala. 1990).
Henriksen did not provide specific objections on the record regarding the requested jury charges. Concerning the charge on emergency medical treatment, there is nothing in the trial transcript elucidating why Henriksen objected to the charge. Accordingly, the objection was not specific enough to preserve any alleged error for review on appeal.
Whether Henriksen's objection to the trial court's refusal to give her requested instruction on lack of consent was sufficient to preserve that objection for appeal is not as clear. 'The purpose of stating grounds for objections is to give the trial court an adequate opportunity to correct the instructions and to avoid the waste of time and money from reversals that result from oversight, technical omissions, or remedial mistakes.' American Cast Iron Pipe Co. v. Williams, 591 So. 2d 854, 856 (Ala. 1991). It can be argued based on the colloquy described above that the trial court was aware of Henriksen's specific reasons for objecting to the lack-of-consent instruction given by the trial court and why it was necessary for the trial court instead to give the instruction proposed by Henriksen. On the other hand, the absence of that objection in the record on appeal makes it difficult, if not impossible, for this Court to assess the extent to which the argument now made by Henriksen on appeal on this issue is the same as the argument Henriksen, and perhaps the trial court, had in mind at trial."
