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

The plaintiffs owned an easement across the defendant’s property. The easement took the form of a dirt road that provided the only access to the plaintiffs’ land. The plaintiffs did not live on this property.

Hoping to curb illegal dumping on his land, the defendant erected a gate across the entrance to the road. He offered the plaintiffs a key to the gate, so they could open it at will. The plaintiffs repeatedly refused the key, choosing instead to sue. The circuit court took the case on written factual stipulations and briefs. It entered a judgment for the plaintiffs, ordering the defendant to remove the gate and allow the plaintiffs “free and unfettered” access over their easement.

The Court of Civil Appeals reversed. It first noted that the lower court’s decision was entitled to no deference. This was because the facts, for their part, had been stipulated and written. “When a trial judge’s ruling is not based substantially on testimony presented live to the trial judge,” the reviewing court explained, “review of factual issues is de novo.” Likewise, “[w]here the facts are not disputed, the ore tenus standard does not apply,” and the trial court’s ruling receives “no presumption of correctness.” Questions of law do not fall under the ore tenus rule; legal rulings thus carry “no presumption of correctness” and attract de novo review.

The appellate court then turned to the merits of the case. Under long-established precedent, the defendant could maintain the gate as long as it did not impose an “unreasonable burden” on the easement. That question was one of “reasonableness under all the circumstances.”

Here, the court had little difficulty finding the gate reasonable. The defendant had been legitimately moved to erect the gate to prevent people from dumping trash on his land, which had in fact occurred. He placed the gate where, at some time in the past, a cable had stretched across the easement. Finally, he had offered the plaintiffs a key to the gate so that they could access their property at will. The court found the plaintiffs’ unexplained refusal of the key “unreasonable,” and the gate to impose, “at worst,” a “negligible” burden on the easement. The order of the lower court was reversed.

Ivan B. Cooper of Lightfoot, Franklin & White represented the prevailing defendant in this appeal.

Day is a boundary dispute between neighbors. In addition to the question of where the boundary fell between the neighbors' properties, the case also involved claims of trespass, adverse possession, conversion, as well as attendant requests for damages.

The circuit court “bifurcated” the proceeding “to first address only the issue of the location of the boundary line.” It held a hearing on this question and entered an order determining the boundary. The court expressly “reserve[d] ruling on all other issues.” Despite the incompleteness of this order, the defendants filed a motion challenging it under Rule 59(e) — what would normally be a post-judgment motion to alter, amend, or vacate. The trial court denied this motion and the defendants appealed.

The Court of Civil Appeals ruled that the partial order was not a final judgment that would support an appeal. Although neither party had raised this issue, the finality of an appealed order implicates the reviewing court’s jurisdiction; and “issues of jurisdiction are of such importance that courts may take notice of them” on their own motion.

Here, the Court of Civil Appeals explained, the separate determination of the property line was not a “final” judgment. “[W]hen separate trials are ordered, a ruling on fewer than all the pending issues is not sufficiently final to support an appeal.” In this vein, the court described the difference between merely “separate” trials under Rule 42(b) and a “true severance” under Rule 21. “[A]fter a true severance a judgment on the first action to come to trial is final and appealable.” When issues are merely “separated” or “bifurcated” under Rule 42(b), however, as they were in Day, a judgment on the first trial, on only some of the separated issues, is not “final.” Such decisions can be certified as final in appropriate cases under Rule 54(b) — but the Day court had made no such certification.