Cases Released July 30, 2010

 

No Rule 54(b) Certification Where Adjudicated and Pending Claims Are “Intertwined”

 In two separate cases, the Court of Civil Appeals dismissed Rule 54(b) appeals from partial summary judgments. Certification under Rule 54(b) was improper in both cases because the appealed claims were too closely “intertwined” with claims that remained pending. Holman v. Sims, No. 2080809 (Ala. Civ. App. Jul. 16, 2010); Marshall Auto Painting & Collision, Inc. v. Peach Auto Painting & Collision, Inc., No. 2090090 (Ala. Civ. App. Jul. 16, 2010).

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Emailed and Oral Orders Not Properly “Rendered”– Pending Contempt Motions Make Judgment Nonfinal

 A divorce case prompted the Court of Civil Appeals to discuss several points about how a judgment is properly “rendered,” and when a judgment is final for purposes of supporting an appeal. Meek v. Meek, No. 2090026 (Ala. Civ. App. Jul. 16, 2010). Ultimately, because the trial court had not disposed of contempt motions, the appellate court held that it lacked jurisdiction and dismissed the appeal.

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Cases Released July 23, 2010

Cases Released July 16, 2010

 

From the Alabama Supreme Court:

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

Complete List of Cases from the Alabama Supreme Court

New Opinions Worth Reading

On June 30, 2010, the Alabama Supreme Court released a collection of opinions that address questions of first impression, present complex issues of appellate procedure, and review of a wide variety of topics.  These cases are not easily summarized; too much is lost in trying to simplify the Court’s lengthy and thoughtful analysis.  The following are worth reading:  Hamm v. Norfolk Southern Railway Company, No. 1060935  (Ala. June 30, 2010)(discussing substitution of a bankruptcy trustee as the proper party in interest following a summary judgment against the bankruptcy debtor); Jones Express, Inc. v. Jackson, No. 1070066 (Ala. June 30, 2010)(discussing inconsistent verdicts, failure to appeal, and res judicata); and DGB, LLC, et al. v. Hinds et al., No. 1081767 (June 30, 2010)(holding that Ala. Code Section 6-2-3 tolls the statute of limitations not only for fraud causes of action but also for other tort causes of action that the defendant allegedly concealed from the plaintiff).    

In Action Against Multiple Defendants, Default Judgment Against One of Them Is Not Final For Purposes Of Appeal

The Alabama Supreme Court rejected the appellees’ contention that an appeal from a default judgment in Progress Industries, Inc. v. Wilson, No. 1080578 (June 30, 2010), was untimely.  The plaintiffs argued that the 42 day period for appeal under ARAP 4 started following the date on which the trial court entered an order assessing damages for the default judgment.  The Court disagreed:  "[a] judgment by default, rendered in advance against one of several defendants, is interlocutory until final disposition is made as to all the defendants. Ford Motor Credit Company v. Carmichael, Ala., 383 So.2d 539 (1980). Interlocutory orders and judgments are, therefore, not brought within the restrictive provisions of Rule 60(b), Alabama Rules of Civil Procedure, which provides for relief from final judgments. Instead, such orders are left within the plenary power of the court that rendered them to afford relief from them as justice requires."  Progress Industries (quoting Hallman v. Marion Corp., 411 So.2d 130, 132 (Ala. 1982)).  The Court held that the time for filing an appeal began to run from the date that the trial court certified the default judgment under ARCP 54(b), and the ARCP 55(c) motion to set aside the default that the defendant filed within 30 days of the 54(b) certifiation tolled the time for appeal until the the defendant’s 55(c) motion was denied by operation of law 90 days later pursuant to ARCP 59.1 

Cases Released July 9, 2010

Cases Released June 30, 2010

From the Alabama Supreme Court:

Ex parte Stutts; Petition for Writ of Mandamus (In re: Stutts v. Vacik, M.D., et al.)

Ex parte Alabama State Personnel Board; Petition for Writ of Mandamus (In re: Nationwide Retirement Solutions, Inc. v. Alabama State Personnel Board)

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

Bon Harbor, LLC v. United Bank et al.

DGB, LLC, et al. v. Hinds et al.

Ex parte Loma Alta Property Owners Association, Inc.; Petition for Writ of Certiorari to the Court of Civil Appeals (In re: Mahoney v. Loma Alta Property Owners Association, Inc.)

Progress Industries, Inc. v. Wilson

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

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

Jones Express, Inc. v. Jackson

Hamm v. Norfolk Southern Railway Company

Complete List of Cases from the Alabama Supreme Court