Cases Released November 21, 2008

From the Alabama Court of Civil Appeals:

Lee v. Alabama Board of Nursing

Ashley’s Seining v. JMK Farms

D.C.L. v. Marion County Department of Human Resources

Bishop State Community College v. Thomas

Boudreau v. Slaton

 

From the Supreme Court of Alabama:

Ex parte Davis and Isaacs, Petition for Writ of Mandamus; In re: The estate of Lee v. Jefferson Metropolitan Healthcare Authority, et al.

Howard v. Allstate Insurance Company, et al.

Johnson v. Strain, et al.

The City of Birmingham v. Major

Ex parte Brunner, Petition for Writ of Certiorari to the Court of Civil Appeals; In re: Brunner v. Ormsby

Fenn v. Ozark City Schools Board of Education

Killings v. Enterprise Leasing Company, Inc.

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

 

Motion to Reconsider Treated as Motion for Protective Order in Case Seeking Mandamus Review of Order Allowing Discovery in Medical Liability Act Case

In Ex parte Gentiva Health Services, Inc., released by the Alabama Supreme Court on November 14, 2008, the court reviewed a trial court’s order allowing discovery of privileged materials in a medical malpractice act even though the party against whom discovery was sought had not filed a motion for protective order in the trial court. 

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Cases Released November 14, 2008

From the Alabama Court of Civil Appeals:

In the Matter of Anonymous, a minor

Smith v. Smith

Stewart v. Bradley

Evans v. First National Bank of Jasper

Darby v. Schley

Vulcan Lands, Inc. v. Surtees

 

From the Supreme Court of Alabama:

Carr, et al. v. International Refining & Manufacturing Company d/b/a IRMCO, et al.

Greene, et al. v. Jefferson County Commission and the General Retirement System for Employees of Jefferson

Ex parte Gentiva Health Services, Inc., Petition for Writ of Mandamus; In re: Savage v. Gentiva Health Services, Inc. and Chaviers

Appeal Of Circuit Court’s Order Affirming Probate Court Dismissed Because Appeal to Circuit Court Was Untimely

In Williams v. Lollar, [Ms. 2070282] (Ala. Civ. App. Nov. 7, 2008), the probate court entered a judgment on a will contest.  The appellant filed a post-judgment motion, whcih was denied by operation of law.  After the motion was denied by operation of law pursuant to Rule 59.1, the probate court ruled on the post-judgment motion.  The appellant then appealed the ruling on the post-judgment ruling to the Circuit Court, which affirmed the probate court.  The appellant then appealed the Circuit Court’s ruling.  The Court of Civil Appeals held that the probate court lost jurisdiction to act after the post-judgment motions were denied by operation of law, and the appeal to the Circuit Court was untimely because it was not filed within 42 days of the denial by operation of law.  Because the appeal to the Circuit Court was untimely, the Circuit Court did not have jurisdiction and, therefore, the order affirming the probate court was void.  And, because a void judgment will not support an appeal, the appeal of the Circuit Court’s order was dismissed. 

Void Judgment Will Not Support An Appeal

In M.P. v. C.P., [Ms. 2070644] (Ala. Civ. App. 2070644), the Court of Civil Appeal applied the well settled rule that a void judgment will not support an appeal.  The juvenile court issued a custody order but, on appeal, the father argued that the circuit court, not the juvenile court, had jurisdiction.  The Court of Civil Appeals agreed that the juvenile court did not have jurisdiction and, therefore, the order was void.  Further, because a void judgment will not support an appealm the Court of Civil Appeals dismissed the appeal. 

Rule 60(b) Motion Is Not A Substitute For An Appeal

In D.L.L. II v. B.J., [Ms. 2070891] (Ala. Civ. App. Nov. 7, 2008), the Court of Civil Appeals reviewed the denial of a Rule 60(b) motion.  First, the Court reversed the denial of a Rule 60(b)(4) motion because the Court had previously held that the order was void for lack of jurisdiction.  However, the Rule 60(b) motion also sought review of another order of the trial court.  The Court of Civil Appeals affirmed that denial.  Because a Rule 60(b) motion is not a substitute for an appeal, it does not bring the underlying judgment up for review.  Rather, the only issues raised on the appeal of the denial of a Rule 60(b) motion is whether the trial court erred in denying the motion.