In a special concurrence in Ramsey v. Ramsey, Ms. 2060661 (Ala. Civ. App. May 23, 2008), Judge Pittman provided a reminder as to the function of the appellate courts.
In his special concurrence to the opinion affirming the trial court, Judge Pittman stated that he "write[s] specially to stress that the Alabama trial court’s specification of one particular ground for its decision . . . does not warrant reversal even if the Alabama trial court’s recitation of that ground was erroneous." Slip Op. p. 25. He further stated that "[i]t is a fundamental proposition that ‘[t]he question to be determined by [an appellate] court is whether [a] judgment is correct, considering the evidence in [the] cause, not whether the ground upon which [the judgment] professes to proceed is tenable.’" Id. (internal citations omitted, emphasis added by court).
The Court of Civil Appeals found that a Rule 54(b) certification was improper and thus dismissed the appeal in Owen v. Hopper, Ms. 2070016 (Ala. Civ. App, May 23, 2008) . In a property line dispute, the Court of Civil Appeals found that the judgment on the counterclaim which was certified as final was really a defense to the underlying tort claim. The court found that the claim and counterclaim were too intertwined to support a 54(b) certification, and, therefore, the appeal had to be dismissed.
In Kovakas v. Kovakas, Ms. 2050780, 2060228 (Ala. Civ. App. May 23, 2008), the Court of Civil Appeals rejected an argument that the trial court had erred by not holding a hearing on a Rule 60(b) motion because no hearing was requested. "When a party fails to request a hearing, ‘to deny his motiin without a hearing [is] not error.’ . . . Even when a hearing is requested, a hearing need not be held if the motion for relief ‘clearly is without substance and [is] merely an attempt to burden the court with frivolous contentions.’" Slip Op. p. 21 (internal citations omitted).
The court ultimately affirmed the denial of the Rule 60(b) motion which was based on newly discovered evidence where there was no reason given as to why the new information could not have been introduced earlier, and the new information would not have changed the result.
In Fausnight v. Perkins, Ms. 1060171 (Ala. May 23, 2008), in a question of first impression, the Alabama Supreme Court held that a home buyer is not entitled to restitution of funds already paid to an unlicensed home builder solely on the basis that the builder was not licensed.
In Holiday Isle, Inc. v. Adkins, Ms. 1070252 (Ala. May 23, 2008) , in an 8-1 decision, the Alabama Supreme Court clarified that, when facts are undisputed and it is a question of law, legal conclusions in injunction orders are reviewed under a de novo standard, and not whether the trial court exceeded its discretion.
The Alabama Supreme Court recently heard oral arguments in Birmingham on a case brought by several businesses against the City of Hoover and the City of Vestavia for claims arising from the flooding of Patton Creek. In Royal Automotive, Inc. v. City of Vestavia and City of Hoover, Ms. 1061313, 1071152 (Ala. May 23, 2008) , the Supreme Court affirmed the summary judgment in favor of Hoover and Vestavia. Click the link for an article on the case entitled"State Supreme Court upholds dismissal of Patton Creek flooding case" from the Birmingham News.
The Court used two lesser known standards of review in the opinions that it issued last week. In Ex parte Johnson, No. 1061762 (Ala. May 16, 2008), the Court discussed the standard of review applicable to a petition for a writ of prohibition. In The Pittsburg & Midway Coal Mining Co. v. Tuscaloosa County et al., No. 1060496 (Ala. May 16, 2008), the Court considered the standard of review that governs a motion to dismiss a declaratory judgment action.
One appellant saw three appeals dismissed in a single decision from the Court of Civil Appeals. Busby v. Lewis, Nos. 2060998, 2060999, 2070151 (Ala. Civ. App. May 9, 2008). Two appeals were from nonfinal judgments that had left claims pending against other parties; while a third was from a void judgment entered after the first appeals were lodged — and thus after the trial court had lost jurisdiction of the case.