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.
In Ex parte State of Alabama, Ms. 1061553 (Dec. 7, 2007), the Alabama Supreme Court held that even a delay of five years in raising state immunity cannot waive the right to assert that defense.
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.
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.