Cases Released on August 31, 2007

From the Alabama Court of Civil Appeals:

Hurth v. Correctional Medical Services, Inc.

J.W.M. v. Cleburne County Department of Human Resources

Sherman Industries, Inc. v. Alexander

Landers v. Lowe’s Home Centers, Inc.

N.J. v. Madison County Department of Human Resources

Ex parte Builders and Contractors Association of Mississippi Self-Insurer’s Fund, In re: Ford v. McKenzie Brothers Construction Company, Inc., et al.

Springfield Missionary Baptist Church v. Wall

State of Alabama Department of Revenue v. Hoover, Inc.

Clements v. Clements

J.E. v. N.K.

Johnson v. Huxford Pole & Timber Company, Inc.

Hardin v. Metlife Auto and Home Insurance Company


From the Supreme Court of Alabama:

Ex parte A.R.S., In re: A.R.S. v. J.E.M.

Ex parte Legg, In re: Legg v. Fortis Insurance Company

Long v. Wade

Ex parte Luker, In re: Luker v. Carrell

Burch v. Moulton, et al.

Eleventh Circuit Finds Rule 23(f) Interlocutory Review Limited to Class Certification Issues

In Escolastico de Leon-Granados, Rene Villatoro-De Leon et al. v. Eller & Sons Trees, Inc. et al., No. 06-15876 (11th Cir. August 31, 2007), the Eleventh Circuit Court of Appeals explained that when it accepts an appeal of a class certification order pursuant to Fed. R. Civ. P. 23(f), it may review only the certification order, not other interlocutory orders that the district court issued.

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Recent Eleventh Circuit Decisions Under Federal Rule of Evidence 702

The Eleventh Circuit has issued several recent decisions under Rule 702 of the Federal Rules of Evidence, further expanding the prodigious case law that finds its source in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). None of the cases breaks new ground, so far as this author can determine. The decisions instead walk established paths under Rule 702, confirming doctrinal conclusions that have been reached before. Nor do these cases treat appellate issues — apart from reciting the applicable standard of review. Given Daubert’s prominent role in civil litigation, though, we thought it might be valuable to readers to digest these cases here.

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“Error” and “Mistake” Do Not Embrace Intentional Dishonesty

The Supreme Court of Alabama, on a writ of certiorari, and answering questions of first impression, held that the words “error” and “mistake” in a tax statute do not embrace intentional dishonesty. Ex parte HealthSouth Corp., 1060296 (Ala. Aug. 24, 2007). The court also decided that equity prevented a dishonest taxpayer from seeking a refund.

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Party Could Not Invite Error By Introducing, Then Challenging, New Evidence After Remand

The Court of Civil Appeals would not reverse a circuit court where, after the case was remanded, the appellant wife introduced new evidence, and later complained about the circuit court’s accepting such evidence. This amounted to late argument and “invited error.” Kaufman v. Kaufman, No. 2060245 (Ala. Civ. App. Aug. 24, 2007). The judgment of the circuit court was accordingly affirmed.

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Appeal from District Court Was Timely: “Posttrial” Rule 52 / 59 Motion Tolled Appellate Deadline

A timely “posttrial” motion in the district court was effectively made under Rule 52 or 59, and thus tolled the time for noticing an appeal. An appeal filed fourteen days after disposition of that motion was timely. Larkin v. Am. Western Ins. Co., No. 2060720 (Ala. Civ. App. Aug. 24, 2007).

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