Failure To Hold Hearing On Post-Judgment Motion Was “Harmless Error”

In Peebles v. Mooresville, No. 1060335 (Sept. 7. 2007), the Alabama Supreme Court affirmed the trial court’s granting of summary judgment in favor of the Town of Mooresville and other of the issue of the validity of a zoning ordinance.  In doing so, the Supreme Court addressed the failure of the trial court to hold a requested hearing on postjudgment motions, as well as the effect of the failure to cite authority for an issue and the effect of filing a reply brief just one day before the summary judgment hearing. 

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Cases Released on September 7, 2007

From the Alabama Court of Civil Appeals:

Cheek v. Dyess

Chambers v. Tibbs

W.P. v. Madison County Department of Human Resources


From the Alabama Supreme Court:

Ex parte Branch, In re: Vines v. Bennefield

BellSouth Telecommunications, Inc. v. Alabama Public Service Commission and Southern Public Communication Association

Ex parte Gillentine, In re: State of Alabama v. Gillentine

Peebles, et al. v. Mooresville Town Council, et al.

Peterson v. Lowndes County Board of Education, et al.

Court of Appeals Affirms Ore Tenus Judgment

In J.W.M. v. Cleburne County Dep’t of Human Resources, No. 2060505 (Ala. Civ. App. Aug. 31, 2007), the Alabama Court of Civil Appeals affirmed a juvenile court judgment that terminated the appellant’s parental rights. The judgment was based on an ore tenus hearing. In affirming the judgment, the court of appeals described the standard of review for a judgment based on ore tenus proceedings. “In reviewing a judgment based on ore tenus proceedings, a trial court’s findings of fact will not be disturbed ‘unless those findings are plainly and palpably wrong and are not supported by the evidence.’ However, ‘the ore tenus rule does not extend to cloak a trial judge’s conclusions of law, or incorrect application of law to the facts.’ (citations omitted) ‘The appellate courts do not sit in judgment of the facts, and [they] review the factfinder’s determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law.’”

Appeal Not Filed Within 42 Days of Denial of Post-Judgment Motion Untimely

The Court of Civil Appeals dismissed an inmate’s appeal from various summary judgment orders because the inmate’s post-judgment motions were denied by operation of law, ARCP 59.1, and the inmate did not file his notice of appeal within 42 days of the denial of the motions.  Hurth v. Correctional Medical Services, Inc. et al., No. 2060551 (Ala. Civ. App. Aug. 31, 2007).

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Collateral Estoppel Bars Re-Litigation of Constitutionality of Tax Scheme

Addressing a long-standing sales tax dispute between the State Department of Revenue and a foreign corporation doing business in Alabama, the Alabama Court of Civil Appeals held that the doctrine of collateral estoppel precluded the court from revisiting constitutional arguments that the revenue department offered in its attempt to retain sales tax collected from the corporation. State of Alabama Dep’t of Revenue v. Hoover, Inc., No. 2060142 (Ala. Civ. App. Aug. 31, 2007).

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Amendment to ARCP 58 (c) Applied Retroactively

Answering a question of first impression, the Alabama Supreme Court held that an amendment to the Alabama Rules of Civil Procedure applies retroactively to cases pending when the amendment was adopted. The Court issued a writ of certiorari, requiring the Court of Civil Appeals to reinstate an appeal which was timely under the Court’s recent amendment to ARCP 58(c). Ex parte Luker, No. 1051805 (August 31, 2007).

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