Alabama Appellate Watch

Cases Released on August 1, 2008

icooper@lfwlaw.com (Ivan B. Cooper) — Fri, 01 Aug 2008 16:59:59 -0600

From the Alabama Court of Civil Appeals:

Smith v. Smith and Flowerwood Nursery, Inc.

Advantage Sales of Alabama, Inc. v. Clemons

Credigy Receivable, Inc. v. Day

Farnell v. Farnell

Hollinger v. Wells, d/b/a Wells Construction

From the Supreme Court of Alabama:

Ex parte Phil Owens Used Cars, Inc., Petition for Writ of Mandamus; In re: Johnson v. Bridgestone Firestone North America Tire, L.L.C., et al.

Eleventh Circuit Adopts "Last Served Defendant" Rule for Removal From State Court

icooper@lfwlaw.com (Ivan B. Cooper) — Wed, 30 Jul 2008 10:35:54 -0600

In Bailey v. Janssen Pharmaceutica, Inc., Case No. 07-12258 (11th Cir. July 29, 2008), the Eleventh Circuit Court of Appeals answered a previously unsettled question regarding removals from state court. The Eleventh Circuit adopted the "last served defendant" rule, meaning that each defendant has 30 days from the date of service to remove the case to federal court, even in the time to remove for other defendants has already run.

Interestingly, this case was decided by only two judges - Judge Anderson and a visiting judge from the Sixth Circuit. Judge Hull originally was on the panel, but she recused herself after oral argument. Therefore, the case was decided by a two judge quorum.

Supreme Court Reminds of the Standard of Review Applicable to Intermediate Appellate Courts

njordan@lfwlaw.com (Nikaa Jordan) — Mon, 28 Jul 2008 11:40:15 -0600

In Ex parte Singleton, released by the Alabama Supreme Court on July 25, 2008, the court reminds us of the standard of review applicable to intermediate appellate courts.

Quoting Ex parte Fort James Operating Co., 895 So.2d 294, 296 (Ala. 2004), the court stated:

On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.

54(b) Certification Made After Notice of Appeal Filed is a Nullity

njordan@lfwlaw.com (Nikaa Jordan) — Mon, 28 Jul 2008 11:26:08 -0600

In Pike v. Reed, released by the Alabama Court of Civil Appeals on July 25, the court held that a Rule 54(b) certification made after a notice of appeal was filed was a nullity.

The trial court entered an order on November 5, 2007 which determined liability, but did not determine the relief to which the plaintiff was entitled. The parties jointly moved the trial court to certify that order as final on January 28, 2008. However, on January 31, 2008, before the trial court had ruled on the joint motion seeking certification of the November 5 judgment, the defendant filed a notice of appeal. That appeal was docketed.

On February 1, 2008, the day after the defendant initiated the appeal, the trial court entered an order certifying the November 5 order as a final judgment. On March 11, 2008 the defendant filed another notice of appeal, which was also docketed.

In questioning its own jurisdiction, the court noted the well-known rule that an appeal will only lie from a final judgment. The November 5 order, however, was not a final judgment because it left the issue of damages undetermined. Moreover, although the February 1 order purported to certify it as a final judgment, the notice of appeal which was filed the day before divested the trial court of jurisdiction to enter any such order. Accordingly, no final judgment had been entered and the court lacked jurisdiction.

Cases Released July 25, 2008

icooper@lfwlaw.com (Ivan B. Cooper) — Mon, 28 Jul 2008 10:27:25 -0600

From the Alabama Court of Civil Appeals:

Decker v. Decker

Boone, et al. v. Birmingham Board of Education

Pike v. Reed

Walton v. Beverly Enterprises-Alabama, Inc., d/b/a Beverly Meadowood Health & Rehabilitation

From the Supreme Court of Alabama:

Ex parte Wolter, Petition for Writ of Certiorari to the Court of Civil Appeals; In re: Weinrib, in his official capacity as Jefferson County Tax Assessor v. Wolter

Ex parte Baggett, Petition for Writ of Certiorari to the Court of Civil Appeals; In re: General Electric Company v. Baggett

Ex parte Singleton, Petition for Writ of Certiorari to the Court of Civil Appeals; In re: D&E Investments, L.L.C., d/b/a Kiva Dunes v. Singleton

Appeal Fron Non-Final Order Dismissed

icooper@lfwlaw.com (Ivan B. Cooper) — Wed, 23 Jul 2008 14:51:38 -0600

In Morrison v. Morrison, Ms. 2070136 (Ala. Civ. App. July 18, 2008), the Court of Civil Appeals dismissed an appeal sua sponte for lack of jurisdiction. The court found that the order on appeal did not dispose of all claims in the case, and there was no Rule 54(b) certification. Applying the well settled rule that only appeals from final judgments can support an appeal, the court dismissed the appeal.

Lack of Standing Requires Dismissal of Appeal

icooper@lfwlaw.com (Ivan B. Cooper) — Wed, 23 Jul 2008 14:38:44 -0600

In Marshall v. Cook, Ms. 2070184 (Ala. Civ. App. July 18, 2008), the Court of Civil Appeals sua sponte dismissed an appeal when it determined that the appellant lacked standing.

In Marshall, a father filed suit seeking an accounting for a conservatorship established for his son. During the pendency of the proceeding, the son reached the age of majority, and reached a settlement agreement with the conservators, even though there were funds still not accounted for. The circut court approved the consent settlement, and the father appealed the order affirming the consent settlement. Reviewing the issue of jurisdiction and standing sua sponte, the Court of Civil Appeals dismissed the appeal. The court found that the father had no interest in the outcome of the accounting or of any reimbursement to the estate. Further, the father stated claims in his own name and not on behalf of his son. Because the father had no standing, he could not appeal the entry of the consent settlement, and the appeal was dismissed.

Trial Court Erred By Not Setting Aside Default Where Party Missed Hearing Due to Hospitalization

icooper@lfwlaw.com (Ivan B. Cooper) — Wed, 23 Jul 2008 14:24:24 -0600

In Stanfield v. Stanfield, Ms. 2061090 (Ala. Civ. App. July 18, 2008), the Court of Civil Appeals held that the trial court erred by failing to set aside a default judgment where a party missed a final hearing due to hospitalization.

The default judgment was entered in this divorce proceeding after the husband's counsel withdrew and the husband missed the final hearing. However, the husband moved to set aside the default on the basis that he missed the hearing due to his hospitalization for observation due to suicidal impulses and threats. The trial court denied the motion to set aside, and the Court of Civil Appeals reversed. The court noted that cases should be heard on the merits whenever practicable, and this is especially true domestic relations cases.

Also, it is worth noting that the motion to set aside was styled as a Rule 55(c) motion. The motion was filed 31 days after the entry of default. This is untimely, as Rule 55 motions must be filed within 30 days. However, Rule 60(b)(1) allows relief in some instances more than 30 days after the entry. It is not clear from the opinion when the motion was converted to a Rule 60 motion, or if the court did so sua sponte. But, the court considered the motion even though it was a Rule 55 motion filed more than 30 days after the entry of default.

Cases Released July 18, 2008

icooper@lfwlaw.com (Ivan B. Cooper) — Fri, 18 Jul 2008 17:41:35 -0600

From the Alabama Court of Civil Appeals:

State Department of Revenue v. Wells Fargo Financial Acceptance Alabama, Inc., et al.

ArvinMeritor v. Johnson

Stanfield v. Stanfield

Franklin v. Etheridge

From the Supreme Court of Alabama:

Ex parte Green, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Green v. State of Alabama

Ex parte Lawson d/b/a The Design Company, Petition for Writ of Certiorari to the Court of Civil Appeals; In re: Lawson d/b/a The Design Company v. Brian Homes, Inc., et al.

Cases Released July 11, 2008

icooper@lfwlaw.com (Ivan B. Cooper) — Fri, 11 Jul 2008 16:15:35 -0600

From the Supreme Court of Alabama:

Ex parte Holbert, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Holbert v. State of Alabama

Moon v. Pillion

Ex parte State of Alabama, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Harris v. State of Alabama

From the Alabama Court of Civil Appeals:

Holifield v. Smith

Pepper v. Bentley

Smith v. Gaston

Court of Civil Appeals Reaffirms that Rule 60(b) Is Not a Substitute for an Appeal

njordan@lfwlaw.com (Nikaa Jordan) — Wed, 09 Jul 2008 16:37:50 -0600

In Hobbs v. Heisey, No. 2070085, the Alabama Court of Civil Appeals reiterated the appropriate uses of Rule 60(b), noting that it cannot be used as a substitute for an appeal from a final judgment.

In Hobbs, the husband sought to appeal a March 2006 divorce decree. In June of that year, however, the judgment was withdrawn and an amended judgment was entered. The father filed a motion to amend, alter, or vacate that judgment, which was granted on October 26, 2006, more than 90 days after the judgment was originally entered and when the trial court had lost its jurisdiction to rule on post-trial motions. The father then filed a motion pursurant to Rule 60(b)(5) and (6) for relief.

The court held that this was not an acceptable mode of seeking relief from the June, 2006 judgment. The court pointed out that the grounds allowed in Rule 60(b)(6) are reserved for extraordinary circumstances and are available only in cases of extreme hardship or injustice. Moreover, that relief is exclusive of the other Rule 60(b) bases. The situation at hand was more akin to that of Rule 60(b)(1) and did not rise to the level required for 60(b)(6). Finally, the court noted that Rule 60(b) cannot be used as a substitute for an appeal.

Cases Released on July 3, 2008

icooper@lfwlaw.com (Ivan B. Cooper) — Wed, 09 Jul 2008 10:27:12 -0600

From the Alabama Court of Civil Appeals:

Mills v. Dailey

Hobbs v. Heisey

R.W. v. G.W. & S. W.

From the Supreme Court of Alabama:

Bob Riley, et al. v. Luther S. Pate IV

"Alabama court sides with Riley in budget dispute"

icooper@lfwlaw.com (Ivan B. Cooper) — Thu, 03 Jul 2008 13:31:54 -0600

In Riley v. Pate, Ms. 1071003 (Ala. July 3, 2008) , the Alabama Supreme Court held that a taxpayer did not have standing to bring suit challenging where the proceeds of the State's judgment against Exxon in the gas royalty dispute would be placed. For more information, click on the link to the article entitled "Alabama court sides with Riley in budget dispute" from the AP via al.com.

Trial Court Has No Jurisdiction to "Reconsider" Denial of Post-Judgment Motion; Must Hold Hearing on Motion for Remittitur

crosler@lfwlaw.com (Craig N. Rosler) — Tue, 01 Jul 2008 12:48:27 -0600

A circuit court loses jurisdiction after denying a post-judgment motion. The court thus cannot “reconsider” its denial. Moreover, a circuit court errs by not holding a hearing on a motion to reduce a punitive award. Southeast Environmental Infrastructure, L.L.C. v. Rivers, Nos. 1060615, 1060643, 1060876 (Ala. Jun. 27, 2008).

The plaintiff was injured while working on a sewer line. The jury awarded him $1,100,000 in compensatory and $400,000 in punitive damages. The defendant filed post-judgment motions for judgment as a matter of law, or for a new trial, or for a remittitur of the punitive award. The defendant also requested a hearing on its motion for remittitur under Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), and Green Oil Co. v. Hormsby, 539 So. 2d 218 (Ala. 1989).

The circuit court scheduled a hearing on the defendant’s motions. The day before that hearing, however, the court informed the parties that it would postpone hearing the motion for remittitur. Ten days later, without holding a hearing on remittitur, the court denied all of the defendant’s post-judgment motions. The plaintiff then asked the court to hold a hearing on the remittitur motion. The defendant maintained that the circuit court could not do so, because it had lost jurisdiction of the case once it denied the post-judgment motions. The defendant maintained that its only remedy was by appeal. The trial court responded that the defendant had either waived its request for a hearing, or had invited any error that resulted from the failure to hold that hearing. The defendant appealed.

The Supreme Court of Alabama affirmed the underlying finding of liability, but held that the trial court had indeed lost jurisdiction after it denied the defendant’s post-judgment motions. The lower court had no power to “reconsider” that denial. The state’s high court recounted at some length the rules in this area:

[T]he Rules of Civil Procedure do not authorize a movant to file a motion reconsider the trial judge’s ruling on his own post-judgment motion. However, in some cases such successive post-judgment motions may be permitted. If, for example, the judge has rendered a new judgment pursuant to a Rule 59(e) motion to alter, amend, or vacate a judgment or pursuant to a Rule 50(b) motion for [a renewed] judgment . . . as a matter of law . . . , the party aggrieved by the new judgment may have had no reason to make such a motion earlier. In the usual case, after a post-judgment motion has been denied, the only review of that denial is by appeal; a judge has no jurisdiction to “reconsider” the denial.

. . . .

Thus, when a post-judgment motion is denied, the review of that denial is by appeal, not by a motion to reconsider.

(Quotations and citations omitted.) The trial court thus lost jurisdiction of the case after it denied the defendant’s post-judgment motions.

The plaintiff, citing Ala. R. Civ. P. 59.1, argued that the parties could have consented to the trial court holding the remittitur hearing after it denied the post-judgment motions. The Supreme Court of Alabama disagreed. It explained that the parties could not reinvest jurisdiction in the trial court by consent, and that Rule 59.1 did not apply where the trial court had already ruled on all post-judgment motions.

Moreover, the state’s high court held that the lower court erred by not holding a hearing on the motion for remittitur. See Ala. R. Civ. P. 59(g) (post-trial motions “shall not be ruled upon until the parties have had an opportunity to be heard thereon”). The appellate court remanded the case for a hearing on that motion.

"Alabama Supreme Court rules that George Bowman can serve on Jefferson County Commission through November"

icooper@lfwlaw.com (Ivan B. Cooper) — Tue, 01 Jul 2008 09:19:21 -0600

In Working v. Jefferson County Election Commission, Ms. 1070850 (Ala. June 30, 2008) , the Alabama Supreme Court invalidated a special election to fill a vacant seat on a county commission, and instead held that the Governor's appointee should serve until the election this Fall. For more information, click the link to the article entitled "Alabama Supreme Court rules that George Bowman can serve on Jefferson County Commission through November" from the Birmingham News.

Premature Post-Judgment Motion and Notice of Appeal Became Effective When Target Orders Became Final

crosler@lfwlaw.com (Craig N. Rosler) — Mon, 30 Jun 2008 17:40:25 -0600

A father filed a post-judgment motion before the circuit court entered its judgment. This motion “quickened” and became effective when the trial court did enter judgment. Similarly, the father’s premature notice of appeal became effective when his post-judgment motion was denied. The father’s appeal was thus timely. T.T.T. v. R.H., No. 2070158 (Ala. Civ. App. Jun. 27, 2008).

The juvenile court held that a father had relinquished custody of his minor child. The court awarded custody of the child to the maternal grandparents, and ordered the father to pay child support. The father sought review in the Court of Civil Appeals.

The appellate court raised a jurisdictional issue on its own motion. The father had filed a post-judgment motion one day before the juvenile court actually entered its judgment. When the father filed this motion, then, there was no “final” judgment at which it could aim. The appellate court explained that such a premature motion “quickens” and is deemed filed when the target judgment is actually entered. The court wrote:

[I]f a party moves for a judgment as a matter of law or, in the alternative, for a new trial before the court has entered judgment, the motion shall be treated as having been filed after the entry of the judgment and on the day thereof.

(Quoting New Addition Club, Inc. v. Vaughn, 903 So. 2d 68, 72 (Ala. 2004)). More broadly:

[A] premature postjudgment motion that, if it had been directed to a final judgment, would toll the time for filing a notice of appeal from a final judgment (see Ala. R. App. P. 4(a)(3)) “quickens” on the day that the final judgment is entered.

The father’s notice of appeal received a similar analysis. The post-judgment motion was denied by operation of law on the 91st day after it became effective. See Ala. R. Civ. P. 59.1. This was on November 14, 2007. The father had filed his notice of appeal five days earlier, on November 9, 2007. Like his post-judgment motion, the father’s notice of appeal “quickened,” became effective, and was deemed filed on the day his post-judgment motion was denied. The father’s appeal was therefore timely.

Appeal Is "Filed" When Received By Circuit Clerk -- Not When Mailed

crosler@lfwlaw.com (Craig N. Rosler) — Mon, 30 Jun 2008 14:19:36 -0600

An appeal is “filed” when the circuit clerk receives the notice of appeal, not when a party mails it. Because the clerk received the notice after the time for filing an appeal had elapsed, the appeal was late and was consequently dismissed D.T. v. State, No. 2070513 (Ala. Civ. App. Jun. 27, 2008).

The juvenile court denied a father’s petition for visitation. The father appealed to the circuit court. That court dismissed the father’s case for failure to state a claim. The father then appealed to the Court of Civil Appeals; but the circuit clerk did not receive his notice of appeal until 18 days after the circuit court's order of dismissal.

The Court of Civil Appeals held that the appeal was late and that it thus lacked jurisdiction. Although neither party had questioned its jurisdiction, the court raised the issue ex mero motu.

“The timely filing of a notice of appeal,” the court wrote, “is a jurisdictional act.” Here, the notice was four days late. Rule 28(C) of the juvenile rules provides that, “Written notice of appeal shall be filed within 14 days of the date of judgment . . . , whether the appeal is to an appellate court or to the circuit court for trial de novo.” (Emphasis in D.T.) The Court of Civil Appeals held that this meant the circuit clerk had to receive the notice of appeal within the 14-day period. It was not enough that the father claimed to have mailed the notice, by overnight courier, within the 14-day deadline. The court wrote:

Whereas, service of papers is complete upon mailing, filing is not complete until the notice if delivered to the proper filing officer.

Put another way, the so-called “mailbox rule,” as applied to contracts or service of papers, is not applicable in the context of a filing requirement. A document has not been filed until it has actually been received by the court; mere mailing is not enough.

(Citations omitted.)

Because the circuit clerk did not received the father’s notice of appeal until four days after the 14-day deadline, his appeal was late. The Court of Civil Appeals thus lacked jurisdiction and dismissed the appeal.

Cases Released June 27, 2008

icooper@lfwlaw.com (Ivan B. Cooper) — Fri, 27 Jun 2008 17:22:12 -0600

From Alabama Court of Civil Appeals:

T.T.T. v. R. H. and J.R.H.

ArvinMeritor, Inc. v. Handley

W.B.G.M. v. P.S.T.

C.J. v. Marion County Department of Human Resources

Montgomery Ford Lincoln Mercury, Inc., et al. v. Hall

D.T. v. State of Alabama

From the Supreme Court of Alabama:

Southeast Environmental Infrastructure, L.L.C. v. Rivers

Weber and The Radiology Group, P.A. v. Freeman

Alabama Department of Corrections and Allen v. Montgomery County Commission

Giles v. Brookwood Health Services, Inc., et al.

Johnson v. Jefferson County Racing Association, Inc., d/b/a The Birmingham Race Court

Ex parte Turner, Petition for Writ of Mandamus, In re: State of Alabama v. Turner

Little Narrows, LLC v. Scott, d/b/a Re/Max Advantage South

Ex parte Madison County Board of Education and Nash, Petition for Writ of Mandamus, In re: A.S., J.S. and R.S., et al. v. Reaves, et al.

Bradley and State of Alabama ex rel. Bradley v. Town of Argo, et al.

Ex parte Bridgett, Petition for Writ of Certiorari to the Court of Criminal Appeals, In re: Bridgett v. State of Alabama

Progressive Specialty Insurance Company v. Gore

Ex parte T.R., Petition for Writ of Certiorari to the Court of Civil Appeals, In re: T.R. v. R.C.

Ex parte Jeffrey Scott Moore, Petition for Writ of Certiorari, In re: Moore v. City of Leeds

United States Supreme Court cuts Exxon Valdez punitive damage award

icooper@lfwlaw.com (Ivan B. Cooper) — Wed, 25 Jun 2008 15:05:31 -0600

In Exxon Shipping Co. v. Baker, No. 07-216 (June 25, 2008), the United States Supreme Court cut the punitive damage award against Exxon arising out of the Exxon Valdez oil spill from $2.5 billion to approxinmately $500 million, and provided further guidance for the review of punitive damage awards.

Justice Souter authored the 5-3 majority opinion. In his opinion, Justice Souter found that this was a maritime case, and thus decided under the federal common law and not due process principles. Justice Souter discussed at length the different punitive damage standards used by various states, and discussed the general purposes of punitive damages. Interestingly, Justice Souter notes that "by most accounts the median ratio of punitive to compensatory awards has remained less than 1:1." Slip Op. p. 24-25.

Justice Souter also examined three various methods used to review punitive damages: (1) verbal tests (using criteria such as "shock the conscience" or "passion and prejudice"); (2) dollar caps; and (3) ratios.

In the end, Justice Souter found the ratio test most appropriate. Under the facts of this case, where no malicious intent was found or behavior driven primarily for gain, and with a substantial compensatory award, a 1:1 ratio was appropriate. Thus, the award was reduced to the amount of the compensatory award, which is approximately $500 million.

For more information on the case, click the links:

"Supreme Court overturns Exxon Valdez ruling" - AP via msnbc.com

"High court reduces Exxon oil spill damages" - CNN.com

"Exxon Valdez $2.5 billion oil spill ruling overturned" - Reuters

"Justices Cut Damages Award in Exxon Valdez Spill" - NY Times

"Exxon Oil-Spill Damages Slashed by Supreme Court" - Wall Street Journal

Payment of workers' compensation benefits pursuant to foreign state's statute does not toll time to bring Alabama workers' compensation claim

icooper@lfwlaw.com (Ivan B. Cooper) — Wed, 25 Jun 2008 14:24:09 -0600

In Ex parte Morris, Ms. 1070384 (Ala. June 20, 2008) , in a question of first impression, the Alabama Supreme Court held that the payment of benefits pursuant to another states workers' compensation statute does not toll the time to bring an Alabama workers' compensation claim. Under the terms of Alabama's statute, only payments under Alabama's workers' compensation statute tolls the time to bring a clain in Alabama. Thus, the plaintiff's claim in this case was untimely and was dismissed. The Court recognized that this rule can lead to harsh results, so it noted that equitable tolling may be available in some cases.