Recusal-Based 60(b)(6) Motion Late Where Moving Party Obtained Underlying Document Six Years Earlier

A defendant found no relief from judgment under Rule 60(b)(6) where he had obtained the document supporting his plea for relief six years before he filed his motion. Price v. Clayton, Nos. 2070728, 2070755 (Ala. Civ. App. Oct. 31, 2008). The trial court’s denial of the recusal-based 60(b)(6) motion was affirmed.

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Late Administrative Appeal Deprived Circuit Court of Jurisdiction

The State was late in appealing to circuit court from the decision of an administrative law judge. The circuit court therefore never acquired jurisdiction over the case. A subsequent appeal to the Court of Civil Appeals was dismissed as being from a void judgment. Krawzcyk v. State Dept. of Public Safety, No. 2070116 (Ala. Civ. App. Oct. 31, 2008).

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Cases Released November 7, 2008

From the Alabama Court of Civil Appeals:

D.L.L. v. B.J.

M.P. v. C.P.

Dabbs v. Four Tees, d/b/a United True Value

J.B. v. DeKalb County Department of Human Resources

City of Dothan v. McCleskey

McCall v. Alabama State Personnel Board

L.A.C. v. T.S.C. and St. Clair County Department of Human Resources

Williams v. Lollar

Alabama Department of Revenue v. The National Peanut Festival Association

Humber v. Bjornson


From the Supreme Court of Alabama:

Hammock v. Wal-Mart Stores, Inc., et al.

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

Holt v. Lauderdale County

Appeal From Partial Summary Judgment Ordering Injunction Dismissed

In Martin v. Phillips, No. 2070351 (Ala. Civ. App. Oct. 24, 2008), Phillips asserted claims against Martin for trespass, nuisance and taking of riparian rights.  Pursuant to ARCP 54(b), the trial court court certified as final the order in which it granted summary judgment in favor of Phillips on his riparian rights claim and issued an injunction; the summary judgment order acknowledged that the trial court did not decide Phillips’s request for damages under the riparian rights claim.  Martin’s attempt to obtain appellate review of the order issuing the injunction and granting partial summary judgment failed for two reasons.  Martin styled his appeal as an appeal from the trial court’s Rule 54(b) certification; however, "the trial court entered a partial summary judgment in favor of Phillips on only that portion of his taking-of-riparian-rights claim seeking an injunction; it did not adjudicate that portion of the very same claim seeking money damages. As noted in Southern Natural Gas Co., supra, damages are an element of a claim, one which, in the present case, remains unadjudicated. Because the trial court did not adjudicate the entirety of Phillips’s taking-of-riparian-rights claim, but, instead, left a portion of that claim for later determination, the trial court’s order did not qualify for certification as a final judgment under Rule 54(b)."  Martin could have appealed from the injunction under ARAP 4(a)(1) which, "provides that an appeal may be taken from an interlocutory order granting an injunction but that the notice of appeal must be filed within 14 days of the entry of the order. . . . Martin did not file his notice of appeal within 14 days of the entry of the order from which he has appealed. Because the filing of a timely notice of appeal is a prerequisite to the exercise of appellate jurisdiction, this court lacks jurisdiction and must dismiss the appeal."  Martin (citation omitted).  The Court’s analysis of the Rule 54(b) certification is thorough and raises a point that might be overlooked. 





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Court Reviews Fair Dismissal Act Decision De Novo

In this appeal from a Fair Dismissal Act proceeding in which employees of Bishop State Community College challenged their terminations on procedural grounds, the Alabama Court of Civil Appeals reviewed de novo the decision of the hearing officers in the administrative proceeding.  The Court explained that it applied the de novo standard because the question that it considered was whether the officers "erred in rescinding the employees’ terminations on the ground that Bishop State had failed to provide the employees proper notice of the factual bases for the termination of their employment and their pay.  In resolving that question, we review only the hearing officers’ conclusions of law and their application of law to the facts. As such, our standard of review is de novo. Barngrover v. Medical Licensure Comm’n of Alabama, 852 So. 2d 147, 152 (Ala. Civ. App. 2002) (stating that the presumption of correctness typically afforded a hearing officer’s decision in an administrative proceeding does not attach to the hearing officer’s conclusions of law or to his or her improper application of the law to the facts)."  Bishop State Community College v. Angelo Archible, No. 2070670 (Ala. Civ. App. October 24, 2008).

“Republican Shaw wins Alabama Supreme Court”

According to this article from the  AP via, Greg Shaw won the race for Justice See’s seat on the Alabama Supreme Court with 50.4% of the vote.  This means that Republicans will continue to hold an 8-1 majority after Juste See leaves the bench.

The article also reports that Republican Bill Thompson won re-election for the Court of Civil Appeals, and Republicans Beth Kellum and Mary Windom won seats on the Court of Criminal Appeals.