Lawyer’s Affidavit Thwarted Mandamus Petition; Court Exceeded Discretion By Ordering More Discovery Than Requested

The Alabama Supreme Court partly granted a mandamus petition in this discovery dispute. It first held that the substantively unchallenged affidavit of the plaintiff’s lawyer, describing an unrecorded hearing in the trial court, provided sufficient evidence to defeat the mandamus petition. It then held that the trial court had exceeded its discretion by compelling wider discovery than the plaintiff had sought. Ex parte Guaranty Pest Control, Inc., No. 1080386 (Ala. Apr. 24, 2009).

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Court of Civil Appeals Reviews Probate Appeal From Circuit Court

 The Court of Civil Appeals addressed two issues in probate appeals.  Section 12-22-21(1) of the Alabama Code, the court first held, allows direct appeals from non-final judgments of both the probate and circuit courts.  The circuit court’s non-final summary judgment therefore did not need to be certified under Rule 54(b).  Moreover, once a probate case is removed to circuit court, exclusive jurisdiction remains in the circuit court for as long as the case is pending there.  The appellant thus could not have appealed from a probate court order that was void for lack of subject matter jurisdiction.  Brown v. Brown, No. 2080018 (Ala. Civ. App. Apr. 24, 2009).

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Fact Findings in Bench Trial Obviate Need For Objection or Post-Judgment Motion

A mother argued that there was insufficient evidence to support the trial court’s custody decision. She had not raised this argument in the trial court. Nonetheless, it was preserved for appeal. Because this was a bench trial, in which the trial court made factual determinations on the custody issue, the mother could challenge sufficiency on appeal without having raised it by objection or post-judgment motion below. Adams v. Adams, No. 2070895 (Ala. Civ. App. Apr. 24, 2009); see Tyson v. Tyson, No. 2070557 (Ala. Civ. App. Apr. 24, 2009)

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Appellate Court Will Not issue Advisory Opinion

An appellate court may not issue an advisory opinion.  A decision may constitute an advisory opinion when the party whose conduct is at issue is not before the court so that the court’s decision will have no effect. BWT v. Haynes, No. 2071235 (Ct. Civ. App. April 17, 2009).  In BWT, the plaintiff sought a declaratory judgment concerning an attorney’s fee. Rule 1.5 of the Alabama Rules of Professional Conduct governed the issue, and the Alabama State Bar, that has jurisdiction over conduct issues, was not a defendant in the declaratory judgment action. The Court of Civil Appeals dismissed the appeal from a judgment concerning the fee.


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Rule 54(b) Certification Abuse of Discretion where Remaining Claims Closely Intertwined with Decided Claims

In Centennial Assoc., Ltd. v. Guthrie, No. 1080015 (Ala. April 17, 2009), the Alabama Supreme Court dismissed an appeal from a summary judgment disposing of all of the plaintiffs’ claims against one of the defendants because the Court found that the trial court abused its discretion in issuing a Rule 54(b) certification that permitted appeal from the partial summary judgment. “Although the order made the basis of the Rule 54(b) certification disposes of the entire claim against Guthrie, thus satisfying the requirements of Rule 54(b) dealing with eligibility for consideration as a final judgment, there remains the additional requirement that there be no just reason for delay. A trial court’s conclusion to that effect is subject to review by this Court to determine whether the trial court exceeded its discretion in so concluding . . . the issues in the claim against Guthrie, the judgment on which was certified as final under Rule 54(b), and the claims that remain pending in the trial court ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d at 1374. As a result, the trial court exceeded its discretion in certifying the June 12, 2008, order as final.”

Rule 62 Motion to Stay Does Not Suspend Time for Appeal

Following the entry of final judgment in a wrongful death action, the defendant filed two post-judgment motions, neither of which suspended the 42 day period for filing a notice of appeal. ARAP 4(a). The Rule 62 motion to stay in which the defendant requested time to consider filing a Rule 59 motion did not satisfy the requirements of ARAP 4(a)(3). Although the Court, “looks to the essence of a motion, not necessarily to its title, to determine how the motion is to be considered under the Alabama Rules of Civil Procedure . . ., [c]onsistent with Rule 4(a)(3), Ala. R. App. P., the Committee Comments on 1973 Adoption of Rule 62 plainly state that the stay provided for in the rule ‘does not affect appealability of the judgment nor prevent the time for appeal from running.’” Graves v. Golthy, No. 1070422 (Ala. April 17, 2009).

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Cases Released April 24, 2009

From the Alabama Court of Civil Appeals:

Cooper v. Cooper

Brown v. Brown

Proctor v. Classic Automotive, Inc.

Francis Powell Enterprises, Inc. v. Andrews

Adams v. Adams

T.G. v. Houston County Department of Human Resources

Campbell v. Campbell

Tyson v. Tyson

Abernant Fire Department v. Rhodes

Complete List of Cases from the Alabama Court of Civil Appeals


From the Alabama Supreme Court:

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

Ex parte Hise; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Hise v. Hise)

Ex parte Sumerlin; Petition for Writ of Mandamus (In re: Williford v. Toole et al.)

Ex parte Guaranty Pest Control, Inc.; Petition for Writ of Mandamus (In re: Brown v. Guaranty Pest Control, Inc.)

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

Lyons v. Vaughn Regional Medical Center, LLC

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

Phillips v. Dickey et al.

Southland Bank v. A&A Drywall Supply Company, Inc.

Complete List of Cases from the Alabama Supreme Court

Cases Released on April 17, 2009

From the Alabama Supreme Court:

Marvin Roland Graves v. Mary Golthy, administratrix of the estate of Freddie Gothy, Jr., deceased

Affinity Hospital, L.L.C., d/b/a Trinity Medical Center, and David Brittin, R.N. v. Doris Williford, as administrator ad litem of the estate of Kristopher Mark Kean, deceased

Centennial Associates, Ltd., et al. v. Donald N. Guthrie

Amanda Smith, individually and on behalf of National Life and Annuity, LLC v. Peter M. Neil, Susan Neil, and Beth Allen

Ex Parte Jo Karen Parr, Petition for Writ of Mandamus, (In re: Kaufman Gilpin McKenzie Thomas Weiss, P.C., formerly known as Kaufman & Rothfeder, P.C. v. Alan E. Rothfeder and Jo Karen Parr)

Complete List of Decisions From the Alabama Supreme Court


From the Alabama Court of Civil Appeals:

B.W.T. v. Haynes & Haynes, P.C.

Ralph Eustace and Martha Haislip v. Sandra Browning, as personal representative of the estate of Eula Cleo Eustace Styles, deceased

Shester Sullivan v. City of Satsuma

T.B. v. T.H. and S.H.

David Ray Coley and Sandra D. Coley v. Billy Fain, Alice F. Fain, and Nancy Miller

Routzong v. Baker

R. Scott Ricks v. Riddle Equipment, Inc.

Lana T. Brown v. Patsy Patton d/b/a Korner Store

Complete List of Decisons From the Court of Civil Appeals