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

Chief Justice Cobb proposed that the Court adopt the framework that the Mississippi Supreme Court recently announced for awarding damages for mental anguish in a breach of contract case.  Chief Justice Cobb would have affirmed the award of damages for mental anguish in this case. 

The Court also addressed a question of first impression in Wise regarding the Alabama Nonprofit Act. 

In Ex parte Beck, the plaintiff sued five defendants alleging unlawful arrest.  However, claims raised on the same nucleus of facts had already be raised in federal court, and the defendants were granted summary judgment.  In the state court suit, three of the defendants raised the affiirmative defenses of re judicata and collateral estoppel in their answers, but two did not.  The trial court dismissed the claims against all defendants on the basis of res judicata and collateral estoppel.

The Court of Civil Appeals affirmed, and the Plaintiff sought certiorari review.  The Supreme Court affirmed for the defendants who had raised the affirmative defenses of res judicata and collateral estoppel in their answers, but reversed for the defendants who did not.

The Supreme Court adopted the reasoning expressed by the Alabama Court of Civil Appeals in Waite v. Waite, 959 So. 2d 610 (Ala. Civ. App. 2006) that "affirmative defenses may be waived if they are not pleaded," and that "althought a trial court may dismiss an action on its own motion on a jurisdictional basis, affirmative defenses such as the statute of limitations or the doctrine of res judicata are not jurisdictional bases upon which a court may base a sua sponte dismissal."  Thus, because two of the defendants had not raised the affirmative defenses of res judicata and collateral estoppel in their answers, the trial court could not dismiss the case against them on that basis.

All may not be lost for the two unlucky defendants, however.  Justice Stuart wrote a special concurrence noting that one defendant can move to amend his answer under Ala. R. Civ. P. 15(a) to plead the affirmative defense.  Further, the other defendant, who had filed a motion to dismiss (but did not raise res judicata), can plead res judicata in his answer. 

In Peebles, the trial court granted summary judgment to the defendants, holding that a zoning ordinance was valid.  The plaintiffs filed Rule 59 postjudgment motions, and requested a hearing on the motions.  Before the hearing was held, however, the trial court denied the motions.  On appeal, the plaintiffs argued that the trial court erred by failing to hold the requested hearing on the motions.  The Supreme Court, however, held that even though it was error not to hold the hearing, the error was not reversible.

The Court noted that Ala. R. Civ. P. 59(g) provides that post-judgment motions "shall not be ruled upon until the parties have had opportunity to be heard thereon."  However, "although the trial court may have erred by not holding a hearing on the Peeble's group postjudgment  motion, such an error does not automatically necessitate a reversal."  p. 11.  Instead, the error will be harmless where "(1) there is . . . no probable merit in the grounds asserted in the motionm or (2) the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court."  p. 11, quoting Historic Blakely Authority v. Williams, 675 So. 2d 359, 352 (Ala. 1995).  Here, because the Court decided the issue as a matter of law using the same standard of review as the trial court, any error was harmless and thus not reversable.

The Court also touched on two other interesting issues.  First, the Peebles argued that the trial court erred by dismissing one of the defendants.  However, the plaintiffs failed to cite legal authority for its argument.  The Court restated the rule that "[w]here am appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court's duty nor its function to perform all the legal research for an appellant,"  p. 8, and affirmed the dismissal.

Second, the Court touched on, but did not decide, whether a reply brief filed by a summary judgment movant the day before a hearing was timely.  Ala. R. Civ. P. 56(c)(2) requires that "the motion for summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing . . ."  The Court did not decide if the trial court erred by holding the hearing one day after the filing of the reply brief, instead concluding that the error, if any, was harmless.  The Court noted that the reply brief did not contain any new evidence or arguments and, therefore, there was no prejudice.