Lower Court Could Not Refuse to Tax Appellate Costs

The juvenile court could not refuse to order a losing appellee to pay the costs of appeal: The appellate court had ordered, and the governing rule mandated, that the appellee pay those costs when its original judgment was reversed. The Court of Civil Appeals directed the juvenile court to enter an order taxing the costs of appeal against the losing appellee. M.B. v. S.B., No. 2080464 (Ala. Civ. App. Aug. 7, 2009).

This custody modification suit was before the Court of Civil Appeals for a second time. In the previous appeal, the Court of Civil Appeals had reversed a custody modification, and taxed the costs of the appeal against the mother, as the losing appellee. When the case returned to the juvenile court, the appellants (the children’s grandparents) moved to recover the costs of appeal, pursuant to the appellate court’s mandate. The juvenile court denied that motion.

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Circuit Court Lacked Jurisdiction to Award Post-Judgment Attorney Fees – Should Have Vacated Void Order Under Rule 60(b)(4)

Well after the deadline had passed for filing post-judgment motions, the circuit court purported to grant a new motion to award the defendant attorney fees. This act was void for want of jurisdiction, and should have been vacated on the plaintiff’s motion. Palisades Collection, LLC v. Delaney, 2070532 (Ala. Civ. App. July 10, 2009).

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Successive Post-Judgment Motions Not Allowed; Court Will Not Review Order Entered In Another Case

After deciding the main issues in a divorce proceeding, the Court of Civil Appeals in Washington v. Washington, [Ms. 2070718] (Ala. Civ. App. May 29, 2009), addressed some interesting appellate issues regarding certain post-judgment orders of the trial court.

First, the court found that a second post-judgment motion filed by the wife was improper, as "successive post-judgment motions by the same party, seeking essentially the same relief, are not allowed."  The trial court’s entry of a judgment based on the second post-judgment motion was therefore void.

Second, the court refused to hear the husband’s appeal of  an order in a contempt action between the parties.  The contempt order was in a separate action and was issued months after the notice of appeal was filed.  Because no notice of appeal had been filed in the separate contempt action, the Court of Civil Appeals could not hear the appeal of that order in conjunction with this case.

Trial Court Has Discretion To Accept New Arguments On Rule 59 Motion

In Woodruff v. Woodruff, [Ms. 2070602] (Ala. Civ. App. May 8, 2009), the Court of Civil Appeals noted the "well settled" rule that "a trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so,’ and that ‘[w]e will reverse only if the trial court abuses that discretion."  Slip Op. p. 14, quoting Steele v. Rosenfeld, LLC, 936 So. 2d 488, 494 (Ala. 2005).  Here, the trial court refused to consider a new argument raised for the first time in a Rule 59 motion, and there was no abuse of discretion.

Void Default Judgment Should Have Been Vacated Under Rule 60(b)(4)


Where a defendant was not served with process, a default judgment entered against her was void for lack of personal jurisdiction. The trial court should have granted her motion to vacate that judgment under Rule 60(b)(4). The Court of Civil Appeals reversed the lower court and ordered the default judgment vacated. Dennis v. Still Waters Residential Ass’n, No. 2071064 (Ala. Civ. App. Mar. 20, 2009).

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