Alabama Appellate Watch : Blog Published by Lightfoot Franklin & White : Alabama Litigation Lawyer & Attorney : Appellate, Alabama Supreme Court (Supreme Court of Alabama)

 The Court of Civil Appeals, on the first appeal of this case, held that the circuit court had wrongly considered evidence outside the pleadings in granting a motion to dismiss. On remand, the circuit court explained that, in fact, its decision had depended on nothing outside the pleadings. It then reentered its dismissal. The Court of Civil Appeals held that this was sufficient and that, given the trial court’s explanation, the “law of the case” doctrine did not bar a reentry of the original judgment. Drees v. Turner, No. 2080742 (Ala. Civ. App. Feb. 26, 2010).

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The Court of Civil Appeals refused to consider an argument that was supported by only three short sentences that cited no legal authority. That argument was inadequate under Rule 28 of the Alabama Rules of Appellate Procedure and was effectively waived. Nance v. Southerland, No. 2080746 (Ala. Civ. App. Jan. 29, 2010).

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When the Eleventh Circuit Court of Appeals certifies a question to the Alabama Supreme Court, the "'particular phrasing used in the certified question is not to restrict the [Alabama] Supreme Court's consideration of the problems involved and the issues as the Supreme Court perceives them to be in its analysis of the record certified in this case.' Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 116 F.3d 1406, 1414 (11th Cir. 1997) (quoting Martinez v. Rodriguez, 394 F.2d 156, 159 n.6 (5th Cir. 1968) (citations omitted))."  The Alabama Supreme Court may rephrase a certified question to enable the Court to address the "'basic issue implicated by th[e] question' and 'contemplated by the Court of Appeals in its certification.'"  Holcim (US), Inc. v. The Ohio Casualty Insurance Company and Industrial Services of Mobile, Inc., No. 1080233 (Ala. Nov. 13, 2009)(quoting John Deere Co. v. Gamble, 523 So. 2d 95, 99 (Ala. 1988)).

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An appellate court must raise the absence of an indispensable party ex more moto and must dismiss an action without prejudice if the plaintiff has not joined an indispensable party.  The failure to join an indispensible party could produce inconsistent verdicts and "impact the rights, duties, and liabilities of the litigants, members of the public, and the county."  Wilson v. Berry, No. 2080615 (Ala. Civ. App. Oct. 16, 2009).

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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.  

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The Court of Civil Appeals in Barnette v. Robertson, No. 2070689 (Ala. Civ. App. Jan. 30, 2009), exercised its discretion to address the merits of the appellant’s argument even though the appellant, “in contravention of Rule 28(a)(10), Ala. R. App. P., fail[ed] to cite authority for [the] argument in his pro se appellate brief.”  When an appellate court is "’able to adequately discern’ the issues presented,” the court may, in its discretion, decide the merits of the appeal.

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In Prescott v. Prescott, [Ms. 2070638] (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals refused to consider an argument that the trial court used an improper standard on a child custody determination.  The court refused to consider the argument because it was not raised in the trial court.  The court found that the error, if it occurred, was not in the trial but in the order itself.  Thus, "the mother had the opportunity to bring this issue to the trial court's attention by filing a postjudgment motion but failed to do so.  Because the mother failed to file a postjudgment motion and raises this argument for the first time on appealm we cannot consider this argument."  Slip Op. p. 3.

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In Hendricks v. KW Plastics, [Ms. 2070324], (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals refused to consider an argument because it was not supported by sufficient citations to the law.  The fact that the appellant was acting pro se did not change the result.

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In Ex parte Auburn University, No. 1070174 (Ala. Oct. 3, 2008), the Alabama Supreme Court considered whether an exception to the sovereign immunity defense applied in the case even though the plaintiffs did not raise the issue in their writ petition concerning the denial of a summary judgment motion.  "The plaintiffs do not include in the argument section of their brief a description of how Dr. Smith acted fraudulently . . . so as to remove him from the protection afforded him by State-agent immunity. . . . Therefore, it could be assumed that the plaintiffs have abandoned their contentions on appeal as they relate to Dr. Smith's claim of State-agent immunity.   However, because the trial court found that a genuine issue of material fact existed" concerning the immunity exception, the Court addressed the issue.  

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In Bessemer Board of Ed. v. Tucker, Ms. 2070390 (Ala. Civ. App. June 20, 2008) , the Alabama Court of Civil Appeals addressed the application of the "law of the case" doctrine, and found that the doctrine is not inflexible.   "The doctrine directs a court's discretion; it does not limit a court's power."  Slip Op. p. 7.  Thus, the court revisited its prior ruling regarding jurisdiction. Continue Reading...

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Where a husband challenged an award of post-minority support for the first time on appeal, his argument would not be entertained; the support judgment was therefore affirmed. Lollar v. Lollar, No. 2060863 (Ala. Civ. App. Apr. 11, 2008).

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On a previous appeal of the same case, the Alabama Supreme Court reversed a summary judgment against a lessor’s fraud claim. That decision was not the “law of the case,” however, because it was premised on an issue the earlier decision did not reach — the merits of a logically prior contract claim. The trial court was thus free, after the first remand, to re-enter summary judgment against the fraud claim. This time, that judgment was affirmed. United Land Corp. v. Drummond Co., No. 1061342 (Ala. Mar. 7, 2008). Continue Reading...

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