Posted on July 3, 2011 by Madeline H. Haikala

Unusual Appellate Summary Judgment Issues

The Isbell v. Aztecas Mexican Grill opinion discusses a number of unusual procedural appellate issues regarding summary judgment motions.  The defendant in that premises liability action moved for summary judgment.  The trial court entered summary judgment based in part on its finding that the affidavit that the plaintiff offered in opposition to the defendant's motion did not contain admissible evidence.  The Court of Civil Appeals refused to consider the affidavit because the plaintiff did not appeal from that aspect of the summary judgment order. No. 2100333 (Ala. Civ. App. June 30, 2011).  

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Posted on April 16, 2010 by Madeline H. Haikala

Appellate Court Will Review Plaintiff's Challenge to Judgment as a Matter of Law Though Not Raised in New Trial Motion

Reversing its decision in Carter v. Treadway Trucking, Inc., 611 So. 2d 1034 (Ala. 1992), the Alabama Supreme Court held that the plaintiff in Robertson v. Gaddy Electric and Plumbing, LLC, No. 1081351 (Ala. April 9, 2010), did not waive his appeal of the Rule 50 judgment as a matter of law on his wantonness claim by not raising the issue in his new trial motion.  

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Posted on February 18, 2010 by Ivan B. Cooper

Argument Must Be Raised To Trial Court To Preserve For Appeal

In this interesting case involving Homeowners' Associations, restrictive covenants, and what actually is an acceptable driveway, one of the issues was disposed of on appeal because it was not raised first  to the trial court.  Grove Hill Homeowners' Association, Inc. v. Rice, [Ms. 2081093] (Ala. Civ. App. Feb. 5, 2010).

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Posted on February 12, 2010 by Ivan B. Cooper

Party Must Move For Judgment As a Matter of Law at Close of All Evidence to Raise Issue on Appeal

In Skerlick v. Gainey, [Ms. 2080673] (Ala. Civ. App. Feb. 5, 2010), the Court of Civil Appeals held that a party waived the ability to challenge the sufficiency of the evidence on appeal because the party did not renew its motion for judgment as a matter of law at the close of all the evidence.

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Posted on October 19, 2009 by Madeline H. Haikala

Issue, Though Preserved Below, Not Subject to Appellate Review When First Raised in Oral Argument

Ordinarily, an appellate court will not consider an argument that a party presents to the court for the first time at oral argument, even though the party preserved the argument in the lower court.  "Issues not clearly raised in the briefs are considered abandoned."  Edwards v. Niagara Credit Solutions, Inc., No. 08-17006 (11th Cir. Oct. 14, 2009).

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Posted on September 14, 2009 by Nikaa Jordan

Agreement for an Extension of Time Within Which to File an Answer Does Not Waive Venue Defenses

In Ex parte Movie Gallery, the Alabama Supreme Court rejected the plaintiff's argument that the defendant had waived its venue defenses where the parties agreed to extend the time for Movie Gallery to file its answer.  

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Posted on September 14, 2009 by Nikaa Jordan

Party Waives Res Judicata Argument By Failing to Raise it in the Trial Court

In Crews v. McLing, No. 1071479, released by the Alabama Supreme Court on September 4, 2009, the defendant-appellant's failure to advance the defense of res judicata in the trial court precluded him from raising it in the appellate court.   

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Posted on July 31, 2009 by Ivan B. Cooper

When Oral Testimony Is Considered By Trial Court But Not In Record on Appeal, Evidence Will Be Presumed to Be Sufficient to Support Judgment

In Cockerell v. Cockerell, [Ms. 2070793] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals affirmed a divorce judgment in part because the husband failed to put a record of the oral testimony in the record.  Because the appellate courts will not presume error, the Court of Civil Appeals found that it was "conclusively presumed that the testimony [was] sufficient to support the error."

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Posted on July 7, 2009 by Nikaa Jordan

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

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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Posted on June 28, 2009 by Madeline H. Haikala

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

 

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).

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Posted on May 6, 2009 by Nikaa Jordan

Alabama Court of Civil Appeals Finds Waiver of Appellate Issues in Two Appeals

Two cases released last week by the Alabama Court of Civil Appeals, J.K. v. N.J. and Jefferson Co. Department of Human Resources, No. 2080199, and Flowers v. Dean, No. 2070344 are illustrative as to the specificity with which an argument must be pressed in the trial court in order to preserve that issue for appellate review. 

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Posted on April 29, 2009 by Craig N. Rosler

Fact Findings in Bench Trial Obviate Need For Objection or Post-Judgment Motion

A mother argued that there was insufficient evidence to support the trial court's custody decision. She had not raised this argument in the trial court. Nonetheless, it was preserved for appeal. Because this was a bench trial, in which the trial court made factual determinations on the custody issue, the mother could challenge sufficiency on appeal without having raised it by objection or post-judgment motion below. Adams v. Adams, No. 2070895 (Ala. Civ. App. Apr. 24, 2009); see Tyson v. Tyson, No. 2070557 (Ala. Civ. App. Apr. 24, 2009)

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Posted on February 24, 2009 by Craig N. Rosler

Court Underscores Distinction Between Moving for JML and Challenging Jury Charges

A defendant correctly moved at trial for judgment as a matter of law (JML) on the ground that the evidence did not raise a jury question. In arguing that the defendant had to challenge the correctness of the jury charges in order to preserve this JML argument, the plaintiffs were confusing different legal phenomena. Cook’s Pest Control, Inc. v. Rebar, Nos. 1050029, 1050128 (Ala. Feb. 20, 2009).

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Posted on February 5, 2009 by Craig N. Rosler

Issue Was Preserved Where Trial Court Understood Basis of Objection to Jury Charge

Even if the objection to a jury charge could have been more specific, the record showed that the trial court understood the basis of the objection, and had a chance to rule on the issue it raised. This was enough to preserve the issue for appeal. Ex parte Hatfield, No. 1070537 (Ala. Jan. 23, 2009).

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Posted on November 17, 2008 by Nikaa Jordan

Alabama Supreme Court Refuses to Review Order Refusing Recusal Where Issue Was Raised for the First Time in Post-Trial Motions

In Greene v. Jefferson Co. Commission, released November 14, 2008, the Alabama Supreme Court refused to review the trial court's order refusing a motion for recusal because the issue was not raised until the post-trial motions stage.

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Posted on June 19, 2008 by Madeline H. Haikala

Specific Objection Must Immediately Follow Inadmissible Evidence

The Alabama Supreme Court reiterated that the denial of a motion in limine does not preserve an objection to evidence for appellate review. In denying the motion, the trial court signals that it will rule on the matter if it arises at trial. To obtain appellate review of an evidentiary objection at trial, the party opposing the evidence must make "a timely objection ..., stating the specific ground of objection, if the specific ground was not apparent from the context. Rule 103, Ala. R. Evid.” Baldwin County Electric Membership Corporation v. City of Fairhope, Nos. 1060475, 1060545 (Ala. Feb 2, 2008), modified on rehearing (June 13, 2008). Continue Reading...
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Posted on April 15, 2008 by Craig N. Rosler

Failure to Specify "Insufficient Evidence" in Trial Motions Removes This Ground for Reversal

The Alabama Supreme Court clarified “the precision with which” insufficiency of the evidence must be stated in motions for judgment as a matter of law, in order to preserve that argument as a basis for reversal. Ex parte Dekle, No. 1051659 (Ala. Apr. 11, 2008). A landowner who argued only that the plaintiffs had “failed to prove their cause of action,” and later “just renew[ed]” that motion, did not preserve insufficient evidence as a ground for reversal. The state’s high court thus upheld a no-opinion affirmance by the Court of Civil Appeals. Continue Reading...
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Posted on April 7, 2008 by Nikaa Jordan

Undue Delay in Filing an Amended Complaint Not An Exception to the Affirm for Any Reason Rule

In Nettles v. White, released by the Alabama Court of Civil Appeals on April 4, 2008, the court determined that an appellate court may affirm on the basis of undue delay in filing an amended complaint even though that ground was not raised in the trial court.      Continue Reading...
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Posted on February 26, 2008 by Ivan B. Cooper

Citation to a Statute Satisfies Ala. R. App. P. 28(a)(10)

In V.W. v. G.W., [Ms 2060902] (Ala. Civ. App. Feb. 22, 2008) , the Court of Civil Appeals commented on the adequacy of citation of authority in a brief's argument, and held that citation to a statute was sufficient to satisfy Ala. R. App. P. 28(a)(10). Continue Reading...
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Posted on February 13, 2008 by Madeline H. Haikala

Eleventh Circuit Offers Cautionary Note on Pleading, Briefing

In an opinion that addresses a variety of Title VII claims, the Eleventh Circuit Court of Appeals offered the following comments about the impact that “shotgun pleadings” have on the federal courts:

[T]he mischief shotgun pleadings causes undermines the public’s respect for the courts – the ability of the courts to process efficiently, economically, and fairly the business placed before them.  At an increasing rate, civil litigants are avoiding the federal district courts; they go elsewhere, to other fora, for the resolution of their disputes, especially complicated commercial disputes.  The federal courts’ civil caseloads reflect this. . . . This has a negative effect on the development of the rule of law in the federal courts.  When issues that ought to be presented to the courts for clarification, and to stabilize the rule of law, are removed to non-judicial fora for resolution, the public bears the cost . . .

Davis et al. v. Coca-Cola Bottling Co., No. 05-12998 (11th Cir. Feb. 6, 2008).  The Court recognized that “shotgun pleadings” are “fueled in no small part by the lawyers’ fear that if they do not include everything but the kitchen sink in their pleadings, they may be sued for malpractice.”  Id., n. 69.  

 

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Posted on February 10, 2008 by Madeline H. Haikala

Court Reaches Merits of Cert Petition though Brief Non-Compliant

Although the petitioner’s brief did not contain all of the sections that ARAP 28 mandates, the Alabama Supreme Court entertained the petitioner’s request for a writ of certiorari to the Alabama Court of Civil Appeals.  Ex parte Cleghorne,  No. 1061014 (Ala. Feb. 8, 2008)  The brief that the petitioner filed in the Alabama Supreme Court in this child custody matter did not contain a statement of jurisdiction or a statement of the standard of review. 



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Posted on February 4, 2008 by Nikaa Jordan

Failure to Renew Evidentiary Objections Raised in Motion in Limine Waives Appellate Review

Baldwin County Electric Membership Corp. v. City of Fairhope, No. 1060475 (Ala. February 1, 2008) serves as a good reminder of the requirement that evidentiary objections made in motions in limine must generally be renewed at trial in order to be preserved for appellate review.  

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Posted on January 23, 2008 by Craig N. Rosler

Landowner Waived Ownership Issue By Failing to Provide Authority and Argument

A landowner waived the issue of whether he owned a watercourse by making only a cursory claim of ownership in his appellate brief, but failing to cite legal authority or make legal arguments to support that claim. Harper v. Coats, No. 1050145 (Ala. Jan. 18, 2008). The Alabama Supreme Court consequently affirmed a summary judgment against him.

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Posted on January 17, 2008 by Madeline H. Haikala

Appellate Courts Hold Firm on Waiver

In a number of opinions released on January 11, 2008, the Alabama Supreme Court noted arguments that parties waived in their appellate briefs.  See Roper v. Rhodes, No. 1060331, p. 4 n. 4 (Ala. Jan 11, 2008)(plaintiff waived appellate review of trial court’s holding that secretary of state was not proper party to election contest because plaintiffs did not include argument pertaining to the issue in their appellate brief); DiBiasi et al. v. Joe Wheeler Electric Membership Corp., No. 1060848 (Ala. Jan. 11, 2008)(in wrongful death action, Court would not review summary judgment on plaintiffs’ wantonness claim because plaintiffs did not argue the issue in their appellate brief, and arguments made for the first time in a reply brief are not properly before the Court); but see, Bright v. Calhoun, No. 1061146 (Ala. Jan. 11, 2008)(mayor adequately briefed argument regarding interpretation of local act because question was one of first impression, and mayor cited cases explaining general rules of statutory construction in support of his argument).

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Posted on November 27, 2007 by Craig N. Rosler

Failure to Cite Authority Defeats Appellants in Two Cases

The Alabama Supreme Court affirmed decisions in two cases, partly because the appellants had not cited legal authority on key points of their arguments. Retail Developers of Ala., LLC v. East Gadsden Golf Club, Inc., No. 1060370 (Ala. Nov. 16, 2007); Chapman Nursing Home, Inc. v. McDonald, No. 1060543 (Ala. Nov. 16, 2007). Though the pertinent reasoning in these cases is brief, the lesson is of obvious import.

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Posted on November 27, 2007 by Craig N. Rosler

Lack of Legal Citation, Citing Affidavit Outside Record Defeat Appeal

A summary judgment was affirmed where, on key points, the appellant failed to cite “relevant legal authority,” and pointed to an affidavit outside the record. Roberts v. NASCO Equip. Co., No. 1060170 (Ala. Nov. 16, 2007).

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Posted on November 12, 2007 by Nikaa Jordan

Consequences of Party's Failure to Cite Legal Authority

Walden v. Hutchinson, No. 1060516, released by the Alabama Supreme Court on November 9, reminds us of the consequences of failing to cite legal authority in appellate briefs. 

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Posted on November 6, 2007 by Ivan B. Cooper

Appellant Loses Benefit of Prior Mandate By Invited Error; Appellant Has Duty to Ensure Record Properly Before Court

In Kaufman v. Kaufman, Ms. 2060245 (Ala. Civ. App. Nov. 2, 2007), the Court of Civil Appeals held that while, after a remand, the trial court is usually bound to decide matters based on the record at the time of the mandate, that can be waived by invited error.  Further, the court discussed the importance of ensuring that the record sent to the appellate court is complete.  Continue Reading...
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Posted on November 1, 2007 by Madeline H. Haikala

Party Must Provide ARCP 56(f) Affidavit to Preserve Argument that Motion for Summary Judgment is Premature

Where the parties to an action have not engaged in discovery and one party files a motion for summary judgment, the non-moving party may not oppose the motion on the basis of lack of discovery unless the party files an affidavit pursuant to Rule 56(f), explaining why the motion for summary judgment is premature and requesting more time for discovery. Warren v. Hooper, No. 1050285 (Ala. October 26, 2007)


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Posted on October 10, 2007 by Ivan B. Cooper

Grounds for reversal not argued to the trial court cannot be considered on appeal.

In Dunlap v. Regions Financial Corporation, No. 1060384 (Ala. Oct. 5, 2007), the Supreme Court refused to consider grounds for reversal asserted on appeal where the arguments were not presented to the trial court, and agains stressed the importance of making sure that the Record on Appeal contains what is necessary to show the trial court's error.  The Court also addressed the question of what effect the filing of a notice of appeal has on a pending claim for attorney's fees. Continue Reading...
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Posted on October 4, 2007 by Madeline H. Haikala

Eleventh Circuit Follows Affirm on Any Valid Ground Rule

In affirming a summary judgment this week, the Eleventh Circuit reminded litigants that, “We may affirm the district court’s decision on any adequate ground, even if it is other than the one on which the court actually relied.” Smith v. Allen et al., No. 05-16010 (11th Cir. Oct. 2. 2007). Continue Reading...
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Posted on August 27, 2007 by Craig N. Rosler

Party Could Not Invite Error By Introducing, Then Challenging, New Evidence After Remand

The Court of Civil Appeals would not reverse a circuit court where, after the case was remanded, the appellant wife introduced new evidence, and later complained about the circuit court’s accepting such evidence. This amounted to late argument and “invited error.” Kaufman v. Kaufman, No. 2060245 (Ala. Civ. App. Aug. 24, 2007). The judgment of the circuit court was accordingly affirmed.

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Posted on August 6, 2007 by Madeline H. Haikala

Issues Not Addressed in Appellate Brief are Waived

In affirming summary judgment in favor of the defendants in Feagins v. Waddy et al., the Alabama Supreme Court found procedural errors in the trial and appellate courts fatal to the plaintiff’s tort claims against her daughter’s track coach and the athletic director of the Birmingham City Schools. No. 1051349 (August 3, 2007). Judgment was proper as to the athletic director because plaintiff did not address the issues relating to the AD in her appellate brief.  See also, Kellis v. Estate of Schnatz, No. 2060197 (Ala. Civ. App. August 3, 2007) (court “’will address on appeal only those issues presented and for which supporting authorities have been cited to the court’”).



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Posted on August 1, 2007 by Craig N. Rosler

Unrecorded Objection and "Induced Error" Would Not Support Reversal

A mother could not challenge a trial court procedure to which she had recorded no objection; to which, on the contrary, she had apparently agreed. Such a challenge presented no ground for reversal. A.J.H.T. v. K.O.H., No. 2051035 (Ala. Civ. App.) (July 27, 2007). Continue Reading...
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Posted on July 23, 2007 by Nikaa Jordan

Offer of Proof Required to Preserve Review of Ruling Sustaining Evidentiary Objection

Hennis v. Hennis, No 2050713, released by the Alabama Court of Civil Appeals on July 20, shows the consequences of failing to make an offer of proof when the trial court sustains an evidentiary objection.

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Posted on July 16, 2007 by Ivan B. Cooper

Law of the Case Doctrine Prevents Review of Prior Ruling

The application of the law of the case doctrine is on display in Stockton v. CKPD Development, No. 1060182 (Ala. July 13, 2007).  In Stockton, the Alabama Supreme Court found that the law of the case doctrine prevented the Court from revisiting a prior ruling from the Court of Civil Appeals which had not been challenged by writ of certiorari. Continue Reading...
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