Motion to Set Aside Default Judgment Tolls Appeal Deadline; Redundant Rule 59(e) Motion “Not Allowed”

The Court of Civil Appeals ordered the circuit court to set aside a default judgment. In doing so, the appellate court reviewed two less common points of post-judgment procedure. First, a motion to set aside a default judgment suspends the time for taking an appeal until the motion is ruled upon. Second, once a post-judgment motion is made, successive motions seeking the same relief are not allowed. Thibodeau v. Thibodeau, No. 2070924 (Ala. Civ. App. Dec. 5, 2008).

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Plaintiff’s Requested Dismissal May Provide Controverted Final Judgment for Appeal

Before a circuit court may review an appeal, the court must be satisfied that it has jurisdiction.  A statute must confer jurisdiction, and the award that the plaintiff seeks must be within constitutional limits.   Section 1291 permits appeals from final judgments.  28 U.S.C. 1291.  A dismissal with prejudice is a final judgment because a loss on appeal ends the case; plaintiff may not re-file.  A voluntary dismissal will not support an appeal because the plaintiff may bring the case again, assuming the statute of limitations has not expired.  The appellant also must be adverse to a final judgment.  If the plaintiff requests a dismissal so the she may refile elsewhere, she is not adverse to the judgment, so there is no case or controversy.  A controversy exists if an interlocutory order is case dispositive, and the plaintiff asks the court to dismiss the case so that the plaintiff may obtain appellate review of the purportedly erroneous order.  In OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 07-10200 (11th Cir. Nov. 28, 2008), the dismissal was final and adverse because the district court order disallowing plaintiff’s expert’s testimony effectively disposed of the plaintiff’s negligence case.  A 1292(b) permissive appeal was not an adequate substitute for the 1291 appeal from final judgment because the threshold for a discretionary interlocutory appeal from an interlocutory discovery order is extremely high, making appellate review difficult to obtain via 1292(b) certification.  

Eleventh Circuit Certifies Two Indemnity Questions to Alabama Supreme Court

Before it will decide an appeal from a summary judgment in Ohio Casualty Ins. Co. v. Holcim, No. 07-15931 (11th Cir. Nov. 17, 2008), an action in which the plaintiff seeks indemnity under the terms of a supply agreement for a settlement payment in an underlying personal injury action, the Eleventh Circuit has certified two questions about Alabama indemnity law to the Alabama Supreme Court pursuant to Rule 18 of the Alabama Rules of Appellate Procedure.  "When substantial doubt exists about the answer to a material state law question upon which the case turns, a federal court should certify that question to the state supreme court to avoid making unnecessary state law guesses and to offer the state court the opportunity to explicate state law . . . Only  a state supreme court can provide what we can be assured are ‘correct’ answers to state law questions, because a state’s highest court is the one true and final arbiter of state law."  Id. (citations omitted).  

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Cases Released December 5, 2008

From the Alabama Court of Civil Appeals:

Thibodeau v. Thibodeau

Hamilton v. CSC Distribution, Inc.

Gregory d/b/a Top Flight Construction, Inc. v. Ferguson

State Department of Industrial Relations v. Campbell

Ex parte Riley, Petition for Writ of Mandamus; In re: Couch v. Couch


From the Supreme Court of Alabama:

Ex parte Montgomery County Department of Human Resources and Alabama Department of Human Resources, Petition for Writ of Certiorari to the Court of Civil Appeals and for Writ of Mandamus; In re: Montgomery County Department of Human Resources and Alabama Department of Human Resources v. The matter of D.R.S., a minor

Southside Community Development Corporation, by Frank C. Galloway III as guardian ad litem v. White

Birmingham Coal & Coke Company, Inc. v. Johnson, et al.

Ex parte Indiana Mills & Manufacturing, Inc., and McNeilus Truck and Manufacturing, Inc., Petition for Writ of Mandamus; In re: Marcy Johnson v. McNeilus Truck and Manufacturing, Inc., et al.

Ex parte Allianz Life Insurance Company of North America, Petition for Writ of Mandamus; In re: Watson v. Allianz Life Insurance Company of North America and Fredrickson

Ex parte Saad’s Healthcare Services, Inc., Petition for Writ of Certiorari to the Court of Civil Appeals; In re: Saad’s Healthcare Services, Inc. v. Meinhardt

Prattville Memorial Chapel and Memory Gardens, Inc. v. Parker

Writ of Certiorari is not Substitute for Appeal

A nurse had no avenue for review of an Alabama Board of Nursing consent order reprimanding her for practicing in Alabama without a state nursing license.  The Court of Civil Appeals held that the trial court properly dismissed the nurse’s petition for writ of certiorari to set aside the consent order because she voluntarily relinquished her right to appeal in the consent order, and "a common-law writ of certiorari is not available when the petitioner has a right to appeal."  When she agreed to the consent order, the nurse "waived any objection she had . . . including any objection that the consent order was reached in contravention of her due-process rights to notice and an opportunity to be heard."   Lee v. Alabama Board of Nursing, No. 2070957 (Ala. Civ. App. Nov. 21, 2008).

No Justiciable Controversy Supports Appeal Where Parties Agree

In Fenn v. Ozark City Schools Board of Education, No. 1070821 (Ala. Nov. 21, 2008), the Alabama Supreme Court vacated the underlying judgment and dismissed the appeal because the plaintiff and the defendant "had no real differences between themselves," so that there was no controversy for the Court to resolve.  To present a justiciable controversy, the plaintiff must have standing, and  his interests must conflict with or oppose the defendant’s interests.  In the absence of an adversarial situtation, the Court has no role to play; it will not issue advisory opinions.  

Appeal from Improper Rule 54(b) Order Dismissed

The Alabama Supreme Court dismissed the appeal from the summary judgments in Howard v. Allstate Ins. Co. et al., No. 1071215 (Ala. Nov. 21, 2008).  The trial court entered summary judgment in favor of some of the defendants.  After the trial court certfied the summary judgments as final, over the plaintiffs’ objection, the plaintiffs appealed.  The Court advised that it "’looks with some disfavor upon certifications under Rule 54(b),’" and that Rule 54(b) certifications "’should be entered only in exceptional cases.’"  The Court found that "[i]t would be contrary to the interests of justice to adjudicate the remaining claims [against the purported agents] separately from the other defendants [alleged principals of the agents]; the common issues are intertwined."  Without the Rule 54(b) certification, the summary judgments were not final and could not support an appeal.   

Cases Released November 26, 2008

From the Supreme Court of Alabama:

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

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

Nationwide Mutual Fire Insurance Company v. Estate of Files, deceased

Orix Financial Services, Inc. v. Murphy

Martin v. Battistella

Fox, et al. v. City of Huntsville


No opinions released by the Alabama Court of Civil Appeals