Alabama Appellate Watch Contributors Win Surety Bond Appeal in the Alabama Supreme Court

Lightfoot attorneys (and alabamaappellatewatch.com’s contributors) Chris King and Nikaa Jordan, along with Carter B. Reid at Watt, Tieder, Hoffar & Fitzgerald, LLP in Washington, DC, represented St. Paul Fire and Marine Insurance Company in an appeal from a summary judgment entered in St. Paul’s favor in a lawsuit brought by the Public Building Authority of the City of Huntsville ("PBA") to enforce the terms of a surety bond that contractors building the Huntsville City Jail had posted.  On October 8, 2010, the Alabama Supreme Court ruled that the  PBA had failed to satisfy the conditions precedent to St. Paul’s obligations under the terms of the $24.36 million bond and released St. Paul from the bond in its entirety.  To read full opinion, please click here.  To read a news article from the opinion, please click here. 

Eleventh Circuit Appellate Practice Institute in Atlanta, October 14-15, 2010

Please consider attending the third Eleventh Circuit Appellate Practice Institute ("ECAPI"), to be held at the Georgia Bar Center in Atlanta on October 14-15, 2010.  Many of the Eleventh Circuit judges, as well as several prominent appellate practitioners, will be speaking.

Click here for the brochure, or click the link to register online.  

It should be a great seminar, and a unique opportunity to hear directly from the judges.  I hope you will be able to attend. 

New Opinions Worth Reading

On June 30, 2010, the Alabama Supreme Court released a collection of opinions that address questions of first impression, present complex issues of appellate procedure, and review of a wide variety of topics.  These cases are not easily summarized; too much is lost in trying to simplify the Court’s lengthy and thoughtful analysis.  The following are worth reading:  Hamm v. Norfolk Southern Railway Company, No. 1060935  (Ala. June 30, 2010)(discussing substitution of a bankruptcy trustee as the proper party in interest following a summary judgment against the bankruptcy debtor); Jones Express, Inc. v. Jackson, No. 1070066 (Ala. June 30, 2010)(discussing inconsistent verdicts, failure to appeal, and res judicata); and DGB, LLC, et al. v. Hinds et al., No. 1081767 (June 30, 2010)(holding that Ala. Code Section 6-2-3 tolls the statute of limitations not only for fraud causes of action but also for other tort causes of action that the defendant allegedly concealed from the plaintiff).    

Eleventh Circuit Discusses Prior Panel Rule

The prior panel rule states that when the decision of one panel of an appellate court conflicts with the decision of another panel, the decision that was issued first is binding until it is reversed by the United States Supreme Court or by an en banc decision.  Writing for the Eleventh Circuit Court of Appeals, Judge Carnes discussed the rule in Pretka v. Kolter City Plaza II, Inc., 10-11471 (11th Cir. June 8, 2010), a case in which the Court reviewed the removal of a CAFA action.  Judge Carnes mentioned the prior panel rule because Pretka addresses the manner in which a defendant may prove the amount in controversy for purposes of removal when the face of the complaint does not state the amount.  Another panel of the Court analyzed the same topic in Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007), also a CAFA action.  Judge Carnes explained why, under the prior panel rule, the Lowery decision does not affect the holding in Pretka.   

 

Court Discusses Admissibility of Summary Judgment Affidavits

In summary judgment proceedings, it is well-settled that parties may rely only on evidence that would be admissible at trial.  In Stephens v. First Commercial Bank, No. 1080648 (Ala. March 12, 2010), Stephens argued that he had no obligation to present evidence in opposition to the bank’s summary judgment motion on its claim for breach of a promissory note because the affidavit that the bank offered in support of its motion violated the best evidence rule and the prohibition against hearsay.  The Alabama Supreme Court disagreed and affirmed the summary judgment for the bank. 

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Argument Must Be Raised To Trial Court To Preserve For Appeal

In this interesting case involving Homeowners’ Associations, restrictive covenants, and what actually is an acceptable driveway, one of the issues was disposed of on appeal because it was not raised first  to the trial court.  Grove Hill Homeowners’ Association, Inc. v. Rice, [Ms. 2081093] (Ala. Civ. App. Feb. 5, 2010).

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Order Valid If Judge Renders and Directs Entry of Judgment But Order Not Entered Until After Judge Leaves Office

The unique scenario of where the trial court judge renders a judgment just before his term of office ends, but the judgment was not entered until after the judge’s term ended,  was presented in Gilliam v. Gilliam, [Ms. 2080856] (Ala. Civ. App. Feb. 5, 2010).  The Court of Civil Appeals concluded that, to be valid, the trial court must both render judgment and direct entry of judgment by the clerk prior to leaving office.  Further, the Court of Civil Appeals held that an order is valid even if filed on a legal holiday, but that the trial court erred by not holding a hearing on a post-judgment motion that had merit.

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