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

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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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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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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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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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 (11^th 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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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