Alabama Court of Civil Appeals Discusses Standard of Review Applicable to Order Dismissing Action for Failure to Comply with Discovery Rules

In Myers v. Harris, released September 25, 2009 by the Alabama Court of Civil Appeals, the court discussed the standard of review applicable to an order dismissing an action due to the plaintiff’s failure to comply with the rules governing discovery.      

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Court Reviews Constitutional Challenge to Statute De Novo

The Alabama Supreme Court applies the de novo standard of review to constitutional challenges to state statute. The Court “approach[es] the question of the constitutionality of a legislative act ‘’with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.’” The Court will sustain the legislation “’unless it is clear beyond reasonable doubt that it is violative of the fundamental law.’” 1568 Montgomery Highway, Inc. v. City of Hoover, 1070531 (Ala. Sept. 11, 2009).

Deferential Ore Tenus Standard Does Not Apply to Questions of Law

"[A]ppellate courts have limited power in reviewing a judgment of a trial court after the trial court hears evidence ore tenus. ‘However, where the question presented on appeal is whether the trial court correctly applied the law, the ore tenus rule has no application.’"  Appellate courts review questions of law de novo, even in an ore tenus case.  Holt v. Whitehurst, No. 2080131 (Ala. Civ. App. July 17, 2009).

In Holt, the trial court erred in entering a judgment for the father on the mother’s attempt to change the principal residence of the parties’ minor son because the trial court did not give the mother an opportunity to call witnesses at the ore tenus hearing.  "Pursuant to the plain language of Rule 52 (c), the trial court could not have entered judgment against the mother until she was fully heard on the issue in question. Under the Act, the burden of proof is on the mother, as the relocating parent."

Alabama Supreme Court Denies Petition for Writ of Mandamus Directing the Trial Court to Enter Protective Order Prohibiting Discovery Relating to Plaintiff’s Sexual History

In In re Laura Kay Carlisle v. Thomas G. Moore and Atmore Animal Hospital, LLC, No, 1080038, released June 30, 2009, the Alabama Supreme Court denied the plaintiff’s petition seeking a writ of mandamus directing the trial court to enter a protective order prohibiting discovery of evidence relating to the plaintiff’s sexual history. In so doing, the court provided a glimpse into just how difficult it is to successfully mandamus a discovery order. 

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Eleventh Circuit Applies Unusual “Extremely Stringent” Standard of Review

The Eleventh Circuit applies an "extremely stringent" standard to review a new trial order based on a district court’s finding that a jury verdict is against the great weight of the evidence.  Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc. et al., No. 08-14133 (11th Cir. June 16, 2009).  The Court explained that, "this more rigorous standard of review ensures the district court does not simply substitute its own credibility choices and inferences for the reasonable choices and inferences made by the jury."  The Eleventh Circuit applies a more deferential standard when a new trial order is based on jury misconduct "or other prejudicial trial events that ‘contaminate’ the jury’s deliberative process."   

Appellate Court Occasionally Conducts De Novo Review in Ore Tenus Case

"’Where a trial court hears ore tenus testimony [in a boundary-line case], . . . its findings based upon that testimony are presumed correct, and its judgment based on those findings will be reversed only if, after a consideration of all the evidence and after making all inferences that can logically be drawn from the evidence, the judgment is found to be plainly and palpably erroneous.’ Bearden v. Ellison, 560 So. 2d 1042, 1043 (Ala. 1990). The presumption of correctness accorded to the trial court’s findings based on evidence presented ore tenus `is particularly strong in boundary line disputes and adverse possession cases, and the presumption is further enhanced if the trial court personally views the property in dispute. Wallace v. Putman, 495 So. 2d 1072, 1075 (Ala. 1986).’  Bell v. Jackson, 530 So. 2d 42, 44 (Ala. 1988).’  Shirey v. Pittman, 985 So. 2d 484, 486 (Ala. Civ. App. 2007)."  Gilbreath v. Harbour, No. 2071242 (Ala. Civ. App. May 22, 2009).  "However strong the ore tenus presumption in adverse-possession cases, ‘[t]he presumption . . . is inapplicable where the facts are undisputed and the issue is resolved simply by applying the relevant law to these undisputed facts.’ Lilly v. Palmer, 495 So. 2d 522, 526 (Ala. 1986)."  Id


Court Reviews Waiver and New Trial Standards

In affirming the jury verdict in Live v. Ventura, No. 1070736 (Ala. May 22, 2009), the Alabama Supreme Court reviewed the standard for a claim of waiver or estoppel concerning a party’s prior inconsistent position. “’Any sort of judicial estoppel or waiver in the context of a prior inconsistent argument is available only when an argument has been made by the parties involved and relied upon by the courts. See, e.g., Greene v. Jefferson County Comm’n, [Ms. 1070300, Nov. 14, 2008] ___ So. 3d ___ (Ala. 2008)(discussing judicial estoppel), and Darnall v. Hughes, [Ms. 2070349, Oct. 17, 2008] ___ So. 3d ___ (Ala. Civ. App. 2008)(discussing principles of equitable estoppel)’”. The Court also summarized the standard of review for a new trial following a jury verdict.

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Court Determines Standard of Review for Denial of AALA Claim

In Mahoney v. Loma Alta Property Owners Assoc., No. 2080192 (Ala. Civ. App. March 27, 2009), the Court of Civil Appeals noted that although the Alabama Supreme Court has identified the standard of review for trial court awards of damages under the Alabama Litigation Accountability Act, the Court has not addressed the standard of review for appeals from orders denying a claim for ALAA damages. The Court concluded that the standard of review that applies to an appeal of an order awarding damages under the ALAA also applies to an appeal from a trial court order denying a claim for damages under the ALAA: “when the trial court denies an ALAA claim without stating its reasons, this court will reverse only when the record shows indisputably that the ‘action, claim, or defense’ is either ‘groundless in fact’ or ‘groundless in law.’” The court noted that an order denying a request for ALAA damages does not have to include findings of fact; an order granting a motion does.

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Court Explains Worker’s Compensation Causation Standard of Review

In Waters Brothers Contractors, Inc. v. Wimberley, No. 2070871 (Ct. Civ. App. March 6, 2009), the Alabama Court of Civil Appeals discussed the standard of review regarding causation in a worker’s compensation case.  The court found that the employer’s expert’s testimony did not defeat the employee’s claim for benefits.  Although the employer’s expert was the only expert witness to testify regarding medical causation, the trial court was not bound to accept his testimony. “The trial court has wide discretion in reaching its findings regarding medical causation. It may interpret the evidence according to its own best judgment. A trial court may infer medical causation from circumstantial evidence indicating that, before the accident, the worker was working normal with no disabling symptoms but that, immediately afterwards, those symptoms appeared and have persisted ever since. On appeal, a trial court’s findings of fact based on conflicting evidence are conclusive on this court if they are supported by substantial evidence.” Id.

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Motion For Summary Judgment Must Be Based On Evidence, Not Mere Averments

In Jones-Lowe Company v. Southern Land and Exploration Company, Inc., [Ms. 1071575] (Ala. March 6, 2009), the Alabama Supreme Court reversed the trial court’s granting of a motion for summary judgment because the motion was based on mere averments and not supported by evidence filed with the trial court.  "[M]otion averments are not evidence in any sense."

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