Cases Released October 31, 2008

From the Alabama Court of Civil Appeals:

Price v. Clayton

J.L.P. v. L.A.M.

McConico v. State of Alabama

American Heritage Life Insurance Company v. Blackmon

Hokes Bluff Welding and Fabrication v. Cox

Krawczyk v. State Public Department of Public Safety

Gold Kist, Inc. v. Porter

 

From the Supreme Court of Alabama:

Ex parte Dolgencorp, Inc., Petition for Writ of Certiorari to the Court of Civil Appeals; In re: Dolgencorp, Inc. v. Gibson

Ex parte City of Arab and Alabama Department of Revenue, Petition for Writ of Certiorari to the Court of Civil Appeals; In re: IEC Arab Alabama, Inc. v. City of Arab

Ex parte Michael Sale, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Sale v. State of Alabama

Ex parte Larry Ray Dunn, Petition for Writ of Mandamus; In re: State of Alabama v. Dunn

Ex parte Brett Yancey, Petition for Writ of Mandamus; In re: Dodd v. Messer

George v. Alabama Power Company

Ex parte Donald Deardorff, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Deardorff v. State of Alabama

 

Court Decides Issue of First Impression for Lenders

Writing for the Alabama Supreme Court on an issue of first impression, Justice See held in Flying J Fish Farm et al. v. Peoples Bank of Greensboro, No. 1061833 (Ala. Oct. 24, 2008), that a lender does not owe a no duty to its borrower to make certain that the project in which the borrower invests is sufficiently feasible to allow repayment of the loan.  Lenders are not insurers of borrowers’ business decisions.  The issue was brought to the Court through a question that the trial court certified for permissive appeal from an order in which the trial court denied the defendants’ motion for summary judgment. 
 

Cases Released October 24, 2008

From the Supreme Court of Alabama:

Ex parte Alabama Department of Transportation, Petition for Writ of Mandamus; In re: Russell Petroleum, Inc. v. Alabama Department of Transportation

Furrow v. Helton

Ex parte N.J.J., Petition for Writ of Certiorari to the Court of Civil Appeals; In re: N.J.J. v. Wesfam Restaurants, Inc., d/b/a Burger King

Flying J Fish Farm, et al. v. Peoples Bank of Greensboro, et al.

 

From the Alabama Court of Civil Appeals:

Ex parte Franks, Petition for Writ of Mandamus; In re: Franks v. Franks

Ex parte Harrison and Harrison d/b/a Western Motor Group, Petition for Writ of Mandamus; In re: Smallwood v. Harrison and Harrison d/b/a Western Motor Group

Harrelson v. Harrelson

Pleasure Island Ambulatory Center v. State Health Planning and Development Agency, et al.

Bishop State Community College v. Archible

Martin v. Phillips

Simmons v. Carwell and Geico Indemnity Insurance Company, Inc.

Alabama Department of Youth Services v. State Personnel Board and Pollard

LaTrace v. Webster, et al.

Cases Released October 17, 2008

From the Alabama Court of Civil Appeals:

McCormick v. Ethridge

Chancellor v. White

Darnall, et al.  v. Hughes, et al.

Norandal U.S.A., Inc. v. Graben

 

From the Supreme Court of Alabama:

Ex parte Bama Concrete and Edwards, Petition for Writ of Mandamus; In re: Mims v. Bama Concrete and Edwards

Ex parte Hensel Phelps Construction Company, Petition for Writ of Mandamus; In re: Childers v. Carter-Burgess, Inc., et al.

Choksi v. Shah

James v. Rane

North Alabama Electric Cooperative v. New Hope Telephone Cooperative

Ex parte Hinton, Petition for Writ of Certiorari to the Court of Criminal Appeals; In re: Hinton v. State of Alabama

In absence of evidence in record, trial court’s judgment is presumed to be supported by the evidence

In Prescott v. Prescott, [Ms. 2070638] (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals affirmed the trial court’s judgment on a child custody modification issue.  The mother appeal, but, the record did not contain a transcript, a statement of the evidence under Ala. R. App. P. 10(d), or an agreed statement of the case under Ala. R. App. P. 10(e).  "In the absence of a transcript of the evidence or an authorized substitute therfor, it is conclusively presumed that the trial court’s judgment is supported by the evidence."  Slip Op. pp. 4-5.  Thus, the judgment was presumed to be supported by the evidence and was affirmed.

Failure to raise argument to trial court precludes consideration on appeal

In Prescott v. Prescott, [Ms. 2070638] (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals refused to consider an argument that the trial court used an improper standard on a child custody determination.  The court refused to consider the argument because it was not raised in the trial court.  The court found that the error, if it occurred, was not in the trial but in the order itself.  Thus, "the mother had the opportunity to bring this issue to the trial court’s attention by filing a postjudgment motion but failed to do so.  Because the mother failed to file a postjudgment motion and raises this argument for the first time on appealm we cannot consider this argument."  Slip Op. p. 3.