Appellate Court Occasionally Conducts De Novo Review in Ore Tenus Case

"’Where a trial court hears ore tenus testimony [in a boundary-line case], . . . its findings based upon that testimony are presumed correct, and its judgment based on those findings will be reversed only if, after a consideration of all the evidence and after making all inferences that can logically be drawn from the evidence, the judgment is found to be plainly and palpably erroneous.’ Bearden v. Ellison, 560 So. 2d 1042, 1043 (Ala. 1990). The presumption of correctness accorded to the trial court’s findings based on evidence presented ore tenus `is particularly strong in boundary line disputes and adverse possession cases, and the presumption is further enhanced if the trial court personally views the property in dispute. Wallace v. Putman, 495 So. 2d 1072, 1075 (Ala. 1986).’  Bell v. Jackson, 530 So. 2d 42, 44 (Ala. 1988).’  Shirey v. Pittman, 985 So. 2d 484, 486 (Ala. Civ. App. 2007)."  Gilbreath v. Harbour, No. 2071242 (Ala. Civ. App. May 22, 2009).  "However strong the ore tenus presumption in adverse-possession cases, ‘[t]he presumption . . . is inapplicable where the facts are undisputed and the issue is resolved simply by applying the relevant law to these undisputed facts.’ Lilly v. Palmer, 495 So. 2d 522, 526 (Ala. 1986)."  Id

 

New Opinion Addresses Wide Range of Final Judgment Topics

Washington Mutual Bank v. Campbell, No. 1060616 (Ala. May 22, 2009), contains a lengthy, informative discussion of many procedural issues regarding final judgments. The trial court entered judgment in favor of the defendant in this state court action based on the plaintiff’s failure to prosecute. The separate dismissal order and the ordered entered on the case action summary sheet stated that the case was dismissed pursuant to Rule 41(b). In a related federal court action, the defendant moved for summary judgment, asserting that the state court dismissal was with prejudice so that the federal action was barred by res judicata. The federal court asked the parties to seek clarification of the state court order. In answer to the plaintiff’s Rule 60(b)(6) motion, the trial court held that its dismissal was without prejudice. The Alabama Supreme Court reversed. For the text of this interesting discussion,

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Court Reviews Waiver and New Trial Standards

In affirming the jury verdict in Live v. Ventura, No. 1070736 (Ala. May 22, 2009), the Alabama Supreme Court reviewed the standard for a claim of waiver or estoppel concerning a party’s prior inconsistent position. “’Any sort of judicial estoppel or waiver in the context of a prior inconsistent argument is available only when an argument has been made by the parties involved and relied upon by the courts. See, e.g., Greene v. Jefferson County Comm’n, [Ms. 1070300, Nov. 14, 2008] ___ So. 3d ___ (Ala. 2008)(discussing judicial estoppel), and Darnall v. Hughes, [Ms. 2070349, Oct. 17, 2008] ___ So. 3d ___ (Ala. Civ. App. 2008)(discussing principles of equitable estoppel)’”. The Court also summarized the standard of review for a new trial following a jury verdict.

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Cases Released May 29, 2009

From the Alabama Court of Civil Appeals:

Shamburger v. Lambert

Robinson v. Baptist Health System, Inc.

NHS Management, LLC et al. v. Wright

Hawkins v. LaSalle Bank, National Association

Washington v. Washington

Complete List of Cases from the Alabama Court of Civil Appeals

 

From the Supreme Court of Alabama:

Parham v. American Bankers Insurance Company of Florida

Byrne et al. v. Galliher et al.

Off Campus College Bookstore, Inc. v. University of Alabama in Huntsville

Ex parte Soleyn; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Bishop State Community College v. Soleyn)

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

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

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

Complete List of Cases from the Supreme Court of Alabama

Cases Released May 22, 2009

From the Alabama Court of Civil Appeals:

Ex parte G.L.; Petition for Writ of Mandamus (In the Matter of H.C.L., a minor child)

Gilbreath v. Harbour

Fielding v. Fielding

Johnson et al.  v. Johnson

Complete List of Cases from the Alabama Court of Civil Appeals

 

From the Alabama Supreme Court:

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

Ex parte Aderhold; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Massey Chevrolet, Inc. v. Aderhold)

Mosley v. Brookwood Medical Center

Line v. Ventura

Alabama Recycling Association, Inc. v. City of Montgomery

Washington Mutual Bank, F.A. v. Campbell

Complete List of Cases from the Alabama Supreme Court

Trial and Appellate Courts Lacked Subject Matter Jurisdiction Over Election Disputes

Two trial courts lacked subject matter jurisdiction over election disputes, where statutory criteria for jurisdiction were not met. The courts’ judgments were therefore void. The appellate court lacked jurisdiction in turn and the appeals were dismissed. Smith v. Burkhalter, No. 1080202 (Ala. May 15, 2009); Crouch v. Howard, No. 1080152 (Ala. May 15, 2009).

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Rule 60(a) Clerical Correction Does Not Affect Deadline to Appeal

The plaintiff mistakenly timed his appeal from the day on which the trial court, under Rule 60(a), corrected a clerical error in its final judgment. He should have measured from the day the original judgment was entered. Filed more than 42 days after the original judgment, his appeal was late and was dismissed. Barnes v. HMB, LLC, No. 2071241 (Ala. Civ. App. May 15, 2009).

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Cases Released May 15, 2009

From the Alabama Court of Civil Appeals:

Greater Washington Park Neighborhood Association v. Board of Adjustment of the City of Montgomery

Hood v. Hood

Barnes v. HMB, LLC, d/b/a Stow-A-Way Storage

Pischek et al. v. Baldwin Youth Services, Inc.

Carroll v. LJC Defense Contracting, Inc.

Clark v. Clark

Complete List of Cases from the Alabama Court of Civil Appeals

 

From the Alabama Supreme Court:

Smith v. Burkhalter et al.

Crouch v. Howard

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

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

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

Dobson v. Vick

Jewett v. Boihem

Clark v. Wells Fargo Bank, N.A.

QBE Insurance Corporation v. The Austin Company, Inc.

Bibb v. Center for Pain of Montgomery, P.C.

Kendall v. United Services Automobile Association

Complete List of Cases from the Alabama Supreme Court

Trial Court Has Discretion To Accept New Arguments On Rule 59 Motion

In Woodruff v. Woodruff, [Ms. 2070602] (Ala. Civ. App. May 8, 2009), the Court of Civil Appeals noted the "well settled" rule that "a trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so,’ and that ‘[w]e will reverse only if the trial court abuses that discretion."  Slip Op. p. 14, quoting Steele v. Rosenfeld, LLC, 936 So. 2d 488, 494 (Ala. 2005).  Here, the trial court refused to consider a new argument raised for the first time in a Rule 59 motion, and there was no abuse of discretion.

Rule 55(c) Motion To Set Aside Default Must Be Ruled Upon In 90 Days; Party In Default Cannot Assert Claim

In McGugin v. McGugin, [Ms. 2071188] (Ala. Civ. App. May 8, 2009), the Court of Civil Appeals dismissed an appeal from being from a void judgment after the trial court held proceedings in a case after it failed to rule on a  Rule 55(c) motion to set aside default judgment.

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