Appellate Courts Can Take Judicial Notice of Record in Previous Consideration of Litigation

In Goetsch v. Goetsch, [Ms. 2060714] (Ala. Civ. App. Feb. 22, 2008), the Court of Civil Appeals noted the general rule regarding an appellate court’s ability to take judical notice of prior appellate proceedings:  "This Court takes judicial notice or has judicial knowledge of contents of it [sic] records with reference to its previous consideration of litigation presently before it."  Slip. Op. p. 19, n.1 (quoting Morrow v. Gibson, 827 So. 2d 756, 762 (Ala. 2002)).

A Post-Judgment Motion Which Has Become Moot Is Not Deemed Denied by Rule 59.1; Alternative Grounds for a Rule 59 Motion Are Not Waived if Not Asserted on Appeal

On February 22, 2008, the Supreme Court denied rehearing but issued a modified opinion in the case Hilb, Rogal & Hamilton Co. v. Werner Beiersdoerfer, [Ms. 1060522] (Ala. Feb. 22, 2008) , originally released on December 14, 2007.  The Supreme Court reaffirmed its holding that post-judgment motions which have become mooted are not subject to denial by operation of Rule 59.1. The court also concluded, in a matter of first impression, that a party who fails to raise its remittitur arguments on appeal from the grant of a motion for a new trial in its favor does not waive those arguments.

Click here for a link to our earlier coverage of this opinion. 

Faxed Notice of Appeal Not “Filed,” Not Effective

A notice of appeal is not “filed” and effective if it is only faxed to the court clerk. L.M. v. Shelby County Dept. of Human Resources, No. 2060860 (Ala. Civ. App. Feb. 15, 2008). The Court of Civil Appeals ruled that a faxed notice of appeal, that was otherwise timely, did not invoke its jurisdiction, and dismissed the appeal.

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Determination of “Separate” Boundary Line Issue Not A Final Judgment

The trial court “bifurcated” and decided one issue in a property line dispute, but reserved other issues for later decision. This did not constitute a final judgment from which an appeal would lie. The defendants’ attempt to gain review of the partial order was dismissed. Day v. Davis, No. 2060787 (Ala. Civ. App. Feb. 15, 2008).

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Cases Released February 15, 2008

From the Alabama Court of Civil Appeals:

Smith v. Smith

Curvin v. Curvin

Weinrib, in his official capacity as Jefferson County Tax Assessor v. Wolter

Hawk v. Roger Watts Insurance Agency et al.

J.P. v. S.S. and C.S.

L.M. v. Shelby County Department of Human Resources

Brewton v. Baker

Day v. Davis

DuBose Construction Company, L.L.C. v. Simmons

James River Corporation v. Bolton

Goodyear Tire & Rubber Company v. Cranford

Petrey v. Petrey

Wagner v. Wagner

Neny v. Neny


From the Supreme Court of Alabama:

Ex parte Folks, In re: Folks v. Tuscaloosa County Credit Union

Ex parte Citizens State Bank, In re: McGee v. Citizens State Bank

Ex parte Lee, In re: Lee v. State of Alabama

Ex parte Lindsey, In re: City of Decatur v. Lindsey

Parrett Trucking, Inc. v. Telecom Solutions, Inc.

Ex parte Kane and State Farm Mutual Automobile Insurance Company, In re: Odom v. Kane and State Farm

Ex parte State of Alabama, In re: Martinez v. State of Alabama

Eleventh Circuit Offers Cautionary Note on Pleading, Briefing

In an opinion that addresses a variety of Title VII claims, the Eleventh Circuit Court of Appeals offered the following comments about the impact that “shotgun pleadings” have on the federal courts:

[T]he mischief shotgun pleadings causes undermines the public’s respect for the courts – the ability of the courts to process efficiently, economically, and fairly the business placed before them.  At an increasing rate, civil litigants are avoiding the federal district courts; they go elsewhere, to other fora, for the resolution of their disputes, especially complicated commercial disputes.  The federal courts’ civil caseloads reflect this. . . . This has a negative effect on the development of the rule of law in the federal courts.  When issues that ought to be presented to the courts for clarification, and to stabilize the rule of law, are removed to non-judicial fora for resolution, the public bears the cost . . .

Davis et al. v. Coca-Cola Bottling Co., No. 05-12998 (11th Cir. Feb. 6, 2008).  The Court recognized that “shotgun pleadings” are “fueled in no small part by the lawyers’ fear that if they do not include everything but the kitchen sink in their pleadings, they may be sued for malpractice.”  Id., n. 69.  


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