The Isbell v. Aztecas Mexican Grill opinion discusses a number of unusual procedural appellate issues regarding summary judgment motions. The defendant in that premises liability action moved for summary judgment. The trial court entered summary judgment based in part on its finding that the affidavit that the plaintiff offered in opposition to the defendant’s motion did not contain admissible evidence. The Court of Civil Appeals refused to consider the affidavit because the plaintiff did not appeal from that aspect of the summary judgment order. No. 2100333 (Ala. Civ. App. June 30, 2011).
Reversing its decision in Carter v. Treadway Trucking, Inc., 611 So. 2d 1034 (Ala. 1992), the Alabama Supreme Court held that the plaintiff in Robertson v. Gaddy Electric and Plumbing, LLC, No. 1081351 (Ala. April 9, 2010), did not waive his appeal of the Rule 50 judgment as a matter of law on his wantonness claim by not raising the issue in his new trial motion.
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).
In Skerlick v. Gainey, [Ms. 2080673] (Ala. Civ. App. Feb. 5, 2010), the Court of Civil Appeals held that a party waived the ability to challenge the sufficiency of the evidence on appeal because the party did not renew its motion for judgment as a matter of law at the close of all the evidence.
Ordinarily, an appellate court will not consider an argument that a party presents to the court for the first time at oral argument, even though the party preserved the argument in the lower court. "Issues not clearly raised in the briefs are considered abandoned." Edwards v. Niagara Credit Solutions, Inc., No. 08-17006 (11th Cir. Oct. 14, 2009).
In Crews v. McLing, No. 1071479, released by the Alabama Supreme Court on September 4, 2009, the defendant-appellant’s failure to advance the defense of res judicata in the trial court precluded him from raising it in the appellate court.
In Cockerell v. Cockerell, [Ms. 2070793] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals affirmed a divorce judgment in part because the husband failed to put a record of the oral testimony in the record. Because the appellate courts will not presume error, the Court of Civil Appeals found that it was "conclusively presumed that the testimony [was] sufficient to support the error."
In Gilmer v. Crestview Memorial Funeral Home, Inc., released on June 30, 2009, the court’s review was restricted to only the grounds on which the defendants had moved to dismiss the plaintiff’s claims: that violation of section 34-13-112 of the Alabama Code did not create a private right of action. Because the plaintiff did not argue that no such private right of action existed, the only question on appeal was whether her claims were based solely on that provision. They were not and the trial court’s grant of summary judgment in the defendant’s favor was reversed with no requirement that the plaintiff put forth substantial evidence in support of her claims.
Reviewing an action for declaratory and injunctive relief, the Alabama Supreme Court held that the issue of the constitutionality of appropriations legislation was properly before the Court even though the Governor’s administration should have raised the issue as a counterclaim rather than as an affirmative defense. Rule 8(c) of the Alabama Rules of Civil Procedure allows a court to treat a mistakenly designated affirmative defense as a counterclaim. More importantly, “the constitutionality of § 4 was argued by both sides at the trial-court level, and the trial court definitively ruled on the issue. Moreover, the Riley administration specifically identified the constitutionality of § 4 of H.B. 328 as an issue on appeal, and both sides have argued the merits of that issue to this Court.” Governor Bob Riley v. Joint Fiscal Committee of the Alabama Legislature et al., No. 1080468 (Ala.June 19, 2009).