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.

Trial court errs when it dismisses a case on the basis of an affirmative defense which was not asserted by defendant.

In Ex parte Beck, No. 1060593 (Ala. Oct. 5, 2007), the Alabama Supreme Court adopted the reasoning  of the Court of Civil Appeals’ decision of Waite v. Waite, 959 So. 2d 610 (Ala. Civ. App. 2006) and held that  "a trial court errs when it dismisses a case on the basis of an affirmative defense  not asserted by the defendant."  Thus, the Supreme Court reversed dismissal based on res judicata and collateral estoppel, even though the Court found that the claim otherwise would be barred, because the defendants failed to raise  the affirmative defenses in their answer.

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Offer of Proof Required to Preserve Review of Ruling Sustaining Evidentiary Objection

Hennis v. Hennis, No 2050713, released by the Alabama Court of Civil Appeals on July 20, shows the consequences of failing to make an offer of proof when the trial court sustains an evidentiary objection.

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Law of the Case Doctrine Prevents Review of Prior Ruling

The application of the law of the case doctrine is on display in Stockton v. CKPD Development, No. 1060182 (Ala. July 13, 2007).  In Stockton, the Alabama Supreme Court found that the law of the case doctrine prevented the Court from revisiting a prior ruling from the Court of Civil Appeals which had not been challenged by writ of certiorari.

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