The juvenile court terminated a mother’s parental rights, and ordered that her minor child be adopted by another couple. The court lacked subject-matter jurisdiction to do either thing. The Court of Civil Appeals dismissed the mother’s appeal regarding her parental rights; and it ordered the juvenile court to vacate both orders. R.L. v. J.E.R., No. 2100050 (Ala. Civ. App. Mar. 25, 2011).
Continue Reading...On January 14, 2011, the Alabama Supreme Court vacated a $3.2 million wrongful death medical malpractice jury award and dismissed the appeal from the award because the Court found that the defendant had State immunity. Consequently, both the trial court and the Alabama Supreme Court lacked subject matter jurisdiction over the case. It did not matter that the defendant did not challenge jurisdiction in the trial court because a party cannot waive a challenge to subject matter jurisdiction. Health Care Authority for Baptist Health v. Davis, No. 1090084 (Ala. Jan, 14, 2011).
Lightning Fair, Inc. v. Rosenberg makes clear that an order granting or denying a motion to compel arbitration is appealed in the same way as any other final order. In addition, it states the standard by which the Alabama Supreme Court reviews a trial court's Rule 54(b) certification.
Continue Reading...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.
Continue Reading...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. Civ. App. Feb. 5, 2010), the Court of Civil Appeals determined that claims were left unresolved in the trial court. Because judgments are final only if the judgment resolves all claims of all parties, and there were no certification of finality pursuant to Ala. R. Civ. P. 54(b), the appeals had to be dismissed as being from non-final judgments.
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. The circuit court’s ruling on the father’s late motion was jurisdictionally void and would not support an appeal. Noll v. Noll, No. 2080736 (Ala. Civ. App. Jan. 29, 2010).
Continue Reading...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. Civ. App. Jan. 29, 2010).
The trial court granted a preliminary injunction in this easement dispute. The defendants appealed that order. While their appeal was pending, the trial court entered a second order making the injunction permanent. The defendants appealed from that second order.
Continue Reading...Two common procedural issues - what happens when a notice of appeal is filed prematurely and what is the effective date of an order - were addressed in Landry v. Landry, [Ms. 2080171, 2080372] (Ala. Civ. App. Nov. 6, 2009).
Continue Reading...In Johnson v. Neal, released October 23, 2009, the Alabama Supreme Court dismissed an appeal from the Macon County Circuit Court for lack of subject matter jurisdiction even though neither of the parties had raised that issue in the trial court.
Continue Reading...The Supreme Court sue sponte dismissed the appeal in Jean v. Jean, [Ms. 1080989] (Ala. Sept. 18, 2009), because the underlying judgment was void. The underlying dispute was a will contest originally brought in probate court, which was transferred to the circuit court. The plaintiff amended the will contest to also bring claims for breach of contract and negligence. But a will contest originally brought in probate court, even if transferred to circuit court, can only address issues relating to the validity of the will. Slip Op. p. 5. The court is without jurisdiction to consider other issues. Slip Op. p. 6. Because the trial court did not have jurisdiction to enter the judgment, the judgment was void. A void judgment will not support an appeal, so the appeal was dismissed.
The Court of Civil Appeals dismissed an appeal for lack of standing in G.P. v. Houston County D.H.R., [Ms. 2080591, 2080606] (Ala. Civ. App. Sept. 18. 2009). The maternal grandmother appealed the termination of parental rights of the parents. The Court of Civil Appeals held that a grandparent has no legally protected parental rights, and cannot assert arguments on behalf of the parents. Therefore, the grandmother did not have standing to appeal, and her appeal was dismissed.
In State Board of Education v. Mullins, No. 1080007, the Alabama Supreme Court dismissed state agencies from the appeal, noting sovereign immunity rendered the trial court without jurisdiction over them.
Continue Reading...In R.J.G. v. S.S.W., [Ms. 2080509] (Ala. Civ. App. Aug. 21, 2009), a portion of a father's appeal was dismissed as untimely as a result of the short deadlines for appeals from a juvenile court. Unlike in Circuit Court, post-judgment motions in a juvenile court must be filed within 14 days of the entry of the order. Ala. R. Juv. P. 1(B). And, a post-judgment motion in a juvenile court will be denied by operation of law after 14 days, Ala. R. Juv. P. 1(B), as opposed to 90 days under Ala. R. Civ. P. 59.1. Finally, appeals from a juvenile court must be made within 14 days of the entry of judgment or denial of the post-judgment motions. Ala. R. App. P. 4(a)(3). The father did not appeal within 14 days after the post-judgment motion was denied by operation of law, so, the appeal in one of the two cases at issue in the opinion was denied as untimely.
In Rhodes v. Rhodes, [Ms. 2070972] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals dismissed an appeal in part because the trial court never ruled on the Rule 60 motion from which review was sought. Rule 60 motions are not denied by operation of law after 90 days pursuant to Rule 59.1. Therefore, the motion was still pending and there was not a final order for purposes of appeal.
Continue Reading...In J.J. v. J.B., [Ms. 208411] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals refused to dismiss an appeal even though the appeal was from an order dismissing the underlying dependency case "without prejudice." Although the Alabama Supreme Court has held that a dismissal "without prejudice" will not support an appeal if the trial court did not address the merits of the case in its order, see Palugi v. Dow, 659 So. 2d 112 (Ala. 1995), that rule does not apply if the order actually decides the issue before the court. Here, the trial court dismissed the underlying action without prejudice because the trial court found that the case was moot. The finding of mootness conclusively decided the issue before the trial court and, therefore, the order would support an appeal. The Court of Civil Appeals ultimately reversed he dismissal.
In South Alabama Skills Training Consortium v. Ford, [Ms. 2080068] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals dismissed an appeal as being from a void judgment because the trial court's jurisdiction on a review of a decision of an administrative law judge was limited by certiorari review, and the trial court did not have jurisdiction to go beyond the appellate court's mandate after remand.
Continue Reading...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.
In Off Campus College Bookstore, Inc. v. University of Alabama in Huntsville, [Ms. 1071426] (Ala. May 29, 2009), the Alabama Supreme Court applied the well-settled rule that an appeal cannot lie from a void judgment and dismissed the appeal where the trial court did not have jurisdiction over the case due to sovereign immunity. The Court further held that the attempt to cure the jurisdiction defect failed.
Continue Reading...Two trial courts lacked subject matter jurisdiction over election disputes, where statutory criteria for jurisdiction were not met. The courts’ judgments were therefore void. The appellate court lacked jurisdiction in turn and the appeals were dismissed. Smith v. Burkhalter, No. 1080202 (Ala. May 15, 2009); Crouch v. Howard, No. 1080152 (Ala. May 15, 2009).
Continue Reading...The plaintiff mistakenly timed his appeal from the day on which the trial court, under Rule 60(a), corrected a clerical error in its final judgment. He should have measured from the day the original judgment was entered. Filed more than 42 days after the original judgment, his appeal was late and was dismissed. Barnes v. HMB, LLC, No. 2071241 (Ala. Civ. App. May 15, 2009).
Continue Reading...In McGugin v. McGugin, [Ms. 2071188] (Ala. Civ. App. May 8, 2009), the Court of Civil Appeals dismissed an appeal from being from a void judgment after the trial court held proceedings in a case after it failed to rule on a Rule 55(c) motion to set aside default judgment.
Continue Reading...In Lee v. Oliver, the Court of Civil Appeals dismissed an appeal for want of appellate jurisdiction where the record did not contain any indication of proper jurisdiction in the circuit court.
Continue Reading...The Court of Civil Appeals addressed two issues in probate appeals. Section 12-22-21(1) of the Alabama Code, the court first held, allows direct appeals from non-final judgments of both the probate and circuit courts. The circuit court’s non-final summary judgment therefore did not need to be certified under Rule 54(b). Moreover, once a probate case is removed to circuit court, exclusive jurisdiction remains in the circuit court for as long as the case is pending there. The appellant thus could not have appealed from a probate court order that was void for lack of subject matter jurisdiction. Brown v. Brown, No. 2080018 (Ala. Civ. App. Apr. 24, 2009).
Continue Reading...An appellate court may not issue an advisory opinion. A decision may constitute an advisory opinion when the party whose conduct is at issue is not before the court so that the court's decision will have no effect. BWT v. Haynes, No. 2071235 (Ct. Civ. App. April 17, 2009). In BWT, the plaintiff sought a declaratory judgment concerning an attorney’s fee. Rule 1.5 of the Alabama Rules of Professional Conduct governed the issue, and the Alabama State Bar, that has jurisdiction over conduct issues, was not a defendant in the declaratory judgment action. The Court of Civil Appeals dismissed the appeal from a judgment concerning the fee.
In Picard v. Credit Solutions, Inc., No. 08-11104 (April 6, 2009), the Eleventh Circuit held that it lacked jurisdiction over the plaintiff's cross-appeal of an issue in an order in her favor. Noting that the language that the plaintiff challenged was dicta, the Court explained that, "'[o]rdinarily, the prevailing party does not have standing to appeal because it is assumed that the judgment caused that party no injury.' An exception to the rule exists where the prevailing party is prejudiced by the collateral effect of the district court's decision. . . . 'A party may not appeal from the judgment or decree in his favor, for the purpose of obtaining review of findings he deems erroneous which are not necessary to support the decree.'" The Picard decision addresses a question of first impression in the Eleventh Circuit regarding whether the Credit Repair Organizations Act prohibits arbitration.
"The absence of an indispensable party is a jurisdictional defect that renders a proceeding void." Allbritton v. Dawkins, No. 2080063 (Ala. Civ. App. March 27, 2009). When a "'final judgment will affect ownership of an interest in real property, all parties claiming an interest in the real property must be joined.'" Id. The county is an indispensable party when the parties to a lawsuit ask the court to determine whether a road is public or private. Because the plaintiffs sought a declaration that Allbritton Lane is a public road, a determination that will affect the rights of the owners of the property underlying the purported easement who were not parties to the lawsuit, the court of civil appeals did not have jurisdiction over the appeal. The appellate court remanded the case to the trial court, ordering the trial court to add the proper parties. The court held that it could decide the indispenable party issue sua sponte on appeal even though the parties did not raise it at the trial cor appellate level because the issue is jurisdictional.
The duty of the appellate court to dismiss appeals where it does not have jurisdiction is evidenced in three cases from the Court of Civil appeals this week.
In K.S. v. H.S., {Ms. 2071034] (Ala. Civ. App. March 6, 2009), the Court of Civil Appeals dismissed the appeal ex mero motu because the underlying judgment was void. Because a void judgment will not support an appeal, the appeal had to be dismissed.
In W.C.R. v. D.A.L., [Ms. 2071167] (Ala. Civ. App. March 6, 2009), the Court of Civil Appeals, again ex mero motu, dismissed an appeal because the notice of appeal was untimely filed.
Finally, in Hollander v. Barnes, [Ms. 2070627] (Ala. Civ. App. March 6, 2009), the Court of Civil Appeals granted a motion to dismiss appeal where the appeal was not from a "final judgment." Because there was a claim still pending in the trial court, the judgment was not final and would not support an appeal.
A homeowner filed a notice of appeal that was not on the Form 1 contained in the Alabama Rules of Appellate Procedure. Moreover, she mistakenly filed her notice in the county’s district rather than circuit court. However, her notice contained all the information required by law, and the district and circuit courts shared the same clerk. Her notice thus effected a timely appeal. Whorton v. Bruce, No. 2070501 (Ala. Civ. App. Feb. 20, 2009).
Continue Reading...In Dawsey v. Raymind James Financial Services, Inc. [Ms. 1070861] (Ala. Feb. 6. 2009), the Alabama Supreme Court dismissed an appeal of an arbitration award because the Circuit Court Clerk had not entered the judgment, as is required to begin judicial review of an award. In its opinion, the Court rejected other bases for exercising jurisdiction over the appeal.
Continue Reading...In American General Life Ins. Co. v. Schoenthal Family, LLC, No. 08-10749 (11th Cir. Jan. 30, 2009), American General cross-appealed from a summary judgment in its favor on its claim for rescission of an insurance policy. AG argued that the district court should have entered judgment in its favor on other grounds that AG raised in its summary judgment motion. The Eleventh Circuit dismissed American General’s cross-appeal for lack of jurisdiction. “’[O]nly a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal . . .A party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.’ In its defense of a summary judgment, an appellee is entitled to raise alternative arguments that were rejected by the district court, because we may affirm on any ground supported by the record, but an appellee is not entitled to cross-appeal a judgment in his favor.”
In Championcomm.net of Tuscaloosa, Inc. v. Morton, [Ms. 1070488] (Jan. 9, 2009), the Alabama Supreme Court dismissed the appeal of an arbitration award because there was no "final judgment." Ala. Code 6-6-15 sets out the procedure by which an arbitration award may be appealed, and it states that "the clerk or register shall enter the [arbitration] award as the judgment of the court." In this case, although the arbitration award was filed with the court, it was never "entered" by the clerk as a judgment. Therefore, because there was no final judgment which had been entered, the Supreme Cout lacked jurisdiction to hear the appeal, and the appeal was dismissed.
In Alfa Mutual Ins. Co. v. Bone, [Ms. 1061808, 1061834] (Ala. Jan. 9, 2009), the Alabama Supreme Court dismissed an appeal based on an improper Rule 54(b) certification where the order did not dispose of all aspects of the declaratory judgment claim. Disposing of some, but not all, issues raised by a claim does not support a Rule 54(b) certification.
Continue Reading...The Court of Civil Appeals's decision in Chaney v. Ala West et al., No. 2070599 (Ala. Civ. App. Dec. 31, 2008), illustrates why parties should be particularly vigilant about appellate procedure in cases involving numerous parties and claims. The trial court over a two year period entered summary judgment in favor of all of the defendants on all of the plaintiffs' claims. The trial court certified the first summary judgment order under Rule 54(b) for immediate review, but the plaintiffs did not appeal that order until they appealed from the final summary judgment. Because the appellants filed their notice of appeal more than 42 days following the Rule 54(b) certification, the Court of Civil Appeals, in a case that the Alabama Supreme Court assigned to it, dismissed that portion of the appeal because it was untimely (and an untimely appeal is a jurisdictional error). The Court of Civil Appeals also rejected the arguments that the appellants submitted in opposition to another defendant's summary judgment motion because the appellants recycled arguments that they had offered in opposition to a third defendant's summary judgment motion. The Court found that the the "largely unresponsive" submission did not satisfy the appellants' burden of proof.
A nurse had no avenue for review of an Alabama Board of Nursing consent order reprimanding her for practicing in Alabama without a state nursing license. The Court of Civil Appeals held that the trial court properly dismissed the nurse's petition for writ of certiorari to set aside the consent order because she voluntarily relinquished her right to appeal in the consent order, and "a common-law writ of certiorari is not available when the petitioner has a right to appeal." When she agreed to the consent order, the nurse "waived any objection she had . . . including any objection that the consent order was reached in contravention of her due-process rights to notice and an opportunity to be heard." Lee v. Alabama Board of Nursing, No. 2070957 (Ala. Civ. App. Nov. 21, 2008).
In Fenn v. Ozark City Schools Board of Education, No. 1070821 (Ala. Nov. 21, 2008), the Alabama Supreme Court vacated the underlying judgment and dismissed the appeal because the plaintiff and the defendant "had no real differences between themselves," so that there was no controversy for the Court to resolve. To present a justiciable controversy, the plaintiff must have standing, and his interests must conflict with or oppose the defendant's interests. In the absence of an adversarial situtation, the Court has no role to play; it will not issue advisory opinions.
The Alabama Supreme Court dismissed the appeal from the summary judgments in Howard v. Allstate Ins. Co. et al., No. 1071215 (Ala. Nov. 21, 2008). The trial court entered summary judgment in favor of some of the defendants. After the trial court certfied the summary judgments as final, over the plaintiffs' objection, the plaintiffs appealed. The Court advised that it "'looks with some disfavor upon certifications under Rule 54(b),'" and that Rule 54(b) certifications "'should be entered only in exceptional cases.'" The Court found that "[i]t would be contrary to the interests of justice to adjudicate the remaining claims [against the purported agents] separately from the other defendants [alleged principals of the agents]; the common issues are intertwined." Without the Rule 54(b) certification, the summary judgments were not final and could not support an appeal.
In Darby v. Schley, the Court of Civil Appeals dismissed an appeal from an order entered by the circuit court in an unlawful-detainer action; because only district courts have jurisdiction over unlawful-detainer actions, the judgment was void and would not support an appeal.
Continue Reading...In Hammock v. Wal-Mart Store, Inc., [Ms. 1070939] (Ala. Nov. 7, 2008), the Alabama Supreme Court dismissed the appeal because it determined that a Rule 54(b) certification was improper.
Continue Reading...In M.P. v. C.P., [Ms. 2070644] (Ala. Civ. App. 2070644), the Court of Civil Appeal applied the well settled rule that a void judgment will not support an appeal. The juvenile court issued a custody order but, on appeal, the father argued that the circuit court, not the juvenile court, had jurisdiction. The Court of Civil Appeals agreed that the juvenile court did not have jurisdiction and, therefore, the order was void. Further, because a void judgment will not support an appealm the Court of Civil Appeals dismissed the appeal.
The State was late in appealing to circuit court from the decision of an administrative law judge. The circuit court therefore never acquired jurisdiction over the case. A subsequent appeal to the Court of Civil Appeals was dismissed as being from a void judgment. Krawzcyk v. State Dept. of Public Safety, No. 2070116 (Ala. Civ. App. Oct. 31, 2008).
Continue Reading...In Martin v. Phillips, No. 2070351 (Ala. Civ. App. Oct. 24, 2008), Phillips asserted claims against Martin for trespass, nuisance and taking of riparian rights. Pursuant to ARCP 54(b), the trial court court certified as final the order in which it granted summary judgment in favor of Phillips on his riparian rights claim and issued an injunction; the summary judgment order acknowledged that the trial court did not decide Phillips's request for damages under the riparian rights claim. Martin's attempt to obtain appellate review of the order issuing the injunction and granting partial summary judgment failed for two reasons. Martin styled his appeal as an appeal from the trial court's Rule 54(b) certification; however, "the trial court entered a partial summary judgment in favor of Phillips on only that portion of his taking-of-riparian-rights claim seeking an injunction; it did not adjudicate that portion of the very same claim seeking money damages. As noted in Southern Natural Gas Co., supra, damages are an element of a claim, one which, in the present case, remains unadjudicated. Because the trial court did not adjudicate the entirety of Phillips's taking-of-riparian-rights claim, but, instead, left a portion of that claim for later determination, the trial court's order did not qualify for certification as a final judgment under Rule 54(b)." Martin could have appealed from the injunction under ARAP 4(a)(1) which, "provides that an appeal may be taken from an interlocutory order granting an injunction but that the notice of appeal must be filed within 14 days of the entry of the order. . . . Martin did not file his notice of appeal within 14 days of the entry of the order from which he has appealed. Because the filing of a timely notice of appeal is a prerequisite to the exercise of appellate jurisdiction, this court lacks jurisdiction and must dismiss the appeal." Martin (citation omitted). The Court's analysis of the Rule 54(b) certification is thorough and raises a point that might be overlooked.
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In James v. Rane, released by the Alabama Supreme Court on October 17, the court dismissed the appeal as from a nonfinal judgment where claims remained pending in the trial court.
Continue Reading...In two cases, Hendricks v. KW Plastics, Inc., [Ms. 2070324] (Ala. Civ. App. Oct. 10, 2008), and Williams v. Moore, [Ms. 2070284] (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals refused to consider arguments where the arguments related to claims from which no appeal had been filed.
Continue Reading...In McCollum v. Keating, [Ms. 2061182], (Ala. Civ. App. Sept. 12, 2008), the Court of Civil Appeals dimissed an appeal by a non-party, finding that the non-party lacked standing.
Continue Reading...When a trial or appellate court finds that it lacks subject matter jurisdiction over a matter, the case is over. Period. The trial court cannot allow a party to correct the jurisdictional flaw by amending the complaint. The court must dismiss the action; all rulings that the trial court enters in the matter are void. Cadle Co. v. Shabani et al., No. 1070116 (Ala. Sept. 5, 2008).
Continue Reading...In Ex parte A.S., [Ms. 1071104] (Ala. Aug. 15, 2008), the Alabama Supreme Court dismissed a petition for writ of mandamus because the appropriate remedy was by way of appeal.
Continue Reading...The Alabama Supreme Court quashed a writ of certiorari in Ex parte State of Alabama Dept. of Revenue, [Ms. 1061766] (Ala. March 21, 2008) because it could not reach the issue presented. On certiorari, the State of Alabama Department of Revenue filed a petition for writ of certiorari asking the Supreme Court to reverse a prior case involving the same parties. The Court of Civil Appeals' opinion, however, was based on the doctrine of collateral estoppel. The Supreme Court found that the State did not challenge that finding in its cert petition. Because the issue of collateral estoppel would have to be addressed before reaching the issue of whether to overrule the prior case, and because the State did not seek review if the collateral estoppel issue, the Court held that it could not reach the issue presented in the cert petition and quashed the writ.
In a special concurrence, Justice See noted that the Alabama Supreme Court had the authority to issue a writ of certiorari ex mero motu. Therefore, in his opinion, quashing the writ was not required, but was appropriate.
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. Ala. Code §12-3-10 (1975) supplies jurisdiction to the Alabama Court of Civil Appeals to issue writs of mandamus in workers' compensation cases. Ex parte Steve Cagle Trucking Co., No. 2061105 (Ala. Civ. App. Feb. 8, 2008).
The Court of Civil Appeals dismissed an appeal in a worker’s comp case, holding that the trial court’s rule 54(b) certification was ineffective because it did not dispose of an entire claim in the case. SCI Alabama Funeral Services, Inc. v. Hester, No. 2060260 (Ala. Civ. App. Nov. 30, 2007).
Continue Reading...The rule that a judgment is not final so as to support an appeal unless it disposes of all claims against all parties caused the appeals to be dismissed in Dabbs v. Four Trees, Inc., Ms. 2060493, 2060494, 2060495 (Ala. Civ. App. Nov. 2, 2007).
Continue Reading...That the landowners claimed an amount exceeding the jurisdictional minimum was sufficient to give the Supreme Court of Alabama jurisdiction, even though a holding for the condemning authority would yield an award below the requisite amount. Ala. Dept. of Transp. v. Williams, No. 1060619 (Ala. Oct. 19, 2007).
Continue Reading...The Court of Civil Appeals dismissed the wife's appeal from a divorce decree in Norman v. Norman, No. 2060587, released October 12, 2007. In that case, the trial court entered a judgment of divorce awarding custody of the parties' children and ordering the father to make child support payments. The mother filed a motion to modify the child support obligations and for contempt. The father answered and filed a motion to stay pursuant to the Servicemembers Civil Relief Act, claiming that he was engaged in active military service. The trial court granted the motion to stay. The mother filed a motion to reconsider the trial court's order granting a stay. The trial court denied that motion on February 22, 2007 and the mother appealed on March 29, 2007.
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In summary judgment proceedings, when an adjudicated claim and an unadjudicated counterclaim are so closely intertwined that separate resolution of the claims might produce inconsistent results, Rule 54(b) certification of an order resolving fewer than all of the claims is not proper. Moreover, “certification of a decision addressing only the type of damages recoverable on a certain claim is inappropriate.”
Where the issues certified for interlocutory appeal (under Ala. R. App. P. 5) proved not to be in dispute, the Alabama Supreme Court decided that permission to appeal had been improvidently granted. Carfax, Inc. v. Browning, No. 1050291 (Ala. Sept. 21, 2007). The Court thus dismissed the appeal.
Continue Reading...A mother appealed from a judgment, trying to address a motion that had been left unresolved in an earlier suit. The current judgment did not address that unresolved motion. Nor did any other ruling. Lacking a final judgment adjudicating that earlier motion, the Court of Civil Appeals lacked jurisdiction to review the case. Fielding v. Fielding, No. 2060243 (Ala. Civ. App.) (July 27, 2007).
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